Case Information
*1
[Cite as
State v. Sluss
,
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 13CA24 vs. :
RICHARD A. SLUSS, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. : _________________________________________________________________
APPEARANCES: COUNSEL FOR APPELLANT: Christine D. Tailer, P.O. Box 14, Georgetown, Ohio 45121 COUNSEL FOR APPELLEE: Anneka P. Collins, Highland County Prosecuting Attorney,
and K. Ross Greer, Highland County Assistant Prosecuting Attorney, 112 Governor Foraker Place, Hillsboro, Ohio 45133
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:9-16-14
ABELE, P.J.
This is an appeal from a Highland County Common Pleas Court judgment of
conviction and sentence. A jury found Richard A. Sluss, defendant below and appellant herein, guilty of (1) two counts of the illegal manufacture of a controlled substance in violation of R.C. 2925.04(A), and (2) one count of possession of chemicals used to manufacture a controlled substance in violation of R.C. 2925.041 (A). Appellant assigns the following errors for review :
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION TO SUPPRESS EVIDENCE BASED ON A VIOLATION OF HIS FOURTH AMENDMENT PROTECTIONS AGAINST UNREASONABLE SEARCH AND SEIZURE.”
SECOND ASSIGNMENT OF ERROR:
“APPELLANT WAS NOT AFFORDED THE EFFECTIVE ASSISTANCE OF COUNSEL.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT MERGING TOGETHER THE TWO ILLEGAL MANUFACTURE CHARGES WITH THE ILLEGAL ASSEMBLY CHARGE, BASED ON THE ACTUAL TRIAL EVIDENCE.”
FOURTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED AS A MATTER OF LAW IN CONVICTING APPELLANT ON THE BASIS OF AN INDICTMENT THAT WAS SUPPORTED BY A DEFECTIVE BILL OF PARTICULARS.” On three occasions during the 2013 summer, the Highland County Sheriff’s
Department searched trailers at 6430 Riber Road in Highland County. On all three occasions, Barb Sluss, appellant's former spouse, met them at the premises and gave permission to search the trailers. Those searches yielded methamphetamine (meth) and chemicals necessary to produce meth.
{¶ 3} On August 6, 2013, the Highland County Grand Jury returned an indictment that charged appellant with the offenses specified above. Appellant pled not guilty and filed a motion to suppress evidence and argued that the search of his premises violated the Fourth Amendment to the United States Constitution. At the suppression hearing, Detective Randy Sanders testified that Barb Sluss gave consent to search the premises. The trial court overruled the motion. At the jury trial, the most damaging testimony, aside from Highland County law
enforcement authorities, came from Lacey Kelley who testified that she was with appellant on occasion and observed him “cooking” meth. Greg Grooms also testified that he retrieved a “mix” for appellant to use in cooking meth, although he was not involved in the cooking process himself. The defense offered Barb Sluss' testimony (appellant's former spouse), but at no time did she contradict the State's evidence. After hearing the evidence, the jury found appellant guilty on all counts. The trial
court sentenced appellant to serve a six year prison terms on each charge of manufacturing meth and a two year term on the charge of possessing chemicals for the manufacture of meth. The trial court then ordered all terms to be served consecutively, for a total sentence of fourteen years. This appeal followed.
I
In his first assignment of error, appellant asserts that the trial court erred by
overruling his motion to suppress evidence. In particular, appellant challenges the ruling that his
ex-spouse, Barb Sluss, had the authority to allow a search of the premises. Appellant points to
the fact that several different trailers sit on the premises and that the evidence adduced at the
hearing is inconclusive as to whether she had the authority to consent to a search.
Generally, appellate review of a decision on a motion to suppress evidence
involves mixed questions of law and fact.
State v. Grubb
,
obtain the voluntary consent of an occupant who shares, or is reasonably believed to share,
authority over the area in common with a co-occupant who later objects to the use of evidence so
obtained,” a warrantless entry and search of the premises is valid. (Emphasis added.)
Georgia v.
Randolph
,
the location of the trailers. Again, we agree that the evidence concerning the geography of the premises is not entirely clear. Appellant, however, fails to show how this lack of precision has any bearing on the voluntariness of Barb Sluss’s consent to search. Moreover, the record indicates that she and appellant actually lived in the “back” trailer, and this is the structure for which she gave consent to search. Appellant also cites Detective Sanders' statement on cross-examination that Rose
Wooten “was the one sort of controlling the property . . .” as an indication that Wooten, rather
than Barb Sluss, is the only person who would be authorized to give consent. However, the
question in this case is who was “the occupant,” see
Georgia v. Randolph
, supra, rather than the
one who controlled the property. The trial court apparently interpreted, and we believe it a
correct interpretation, that Wooten “controlled” the property in the same way that a landlord may
control the property. That, however, does not mean that Wooten was the occupant.
Detective Sanders stated that Wooten told him “that Richard and Barb was [sic]
living there.” As we noted earlier, in a suppression hearing the trial court serves as the trier of
fact. It may believe all, part or none of the testimony of any witness and can choose how much
weight to afford to certain parts of a witness’s testimony. See
State v. Lytle
, 4 th Dist. Ross No.
96CA2182,
II
In his second assignment of error, appellant argues that he was denied
constitutionally effective assistance of trial counsel. Criminal defendants have a constitutional
right to the effective assistance of counsel. See
McMann v. Richardson
,
to properly challenge the chain of evidence before a BCI witness testified. A statement in his brief, however, appears to undermine this point:
“Granted both the underlying facts relating where the items containing methampheteamine were recovered, and the chain of custody that brought these times to the witness for analysis, were admitted later, during the course of the trial, but this was in clear contravention of Evidence Rule 705 which provides that provides [sic] the facts or data upon which the experts opinion is based, are to be disclosed prior to rendering the opinion.” (Appellant’s brief page 17.) This statement indicates that even if the underlying facts of an expert BCI witness's opinion should have been detailed before the witness expressed an opinion, the result of the case would not have been different. Moreover, the admission of several witnesses, including Lacey Kelley, also established that appellant possessed the chemicals for the manufacture of methamphetamine and did, in fact, manufacture that drug. For these reasons, we hereby overrule appellant's second assignment of error.
III Appellant’s third assignment of error involves the trial court’s decision to not merge the two convictions for the illegal manufacture with the conviction for the illegal possession of chemicals used in the manufacture of a controlled substance. The trial court addressed this issue directly and opined:
“ * * * The first thing I’m going to consider is the question of merger of Count Three with Counts One and Two. Counts One and Two were clearly committed on separate days, the 13 th and the 27 th of June. Count Three was an alleged continuing course of conduct. The Court will note that, uh, the, uh, Counts One and Two are actual production of methamphetamine; and, there was testimony in the record that there was actual meth produced on both dates. * * * The testimony is that there was extensive chemicals kept in two different locations on the same property, two different campers that is, there were extensive items in both places. There was testimony from Ms. Kelley that the Defendant cooked every day, so it appears he had an on-going supply of ingredients to assemble or to engage in the production of methamphetamine.
It appears, therefore, that these were committed with separate animus, and that, uh, the conduct, while you must have the chemicals to commit Counts One and Two, it appears from the testimony that there were always plenty of chemicals there to produce the meth whenever desired.”
Appellant does not challenge the trial court’s recitation of the evidence, but argues that it erred in applying the law. The application of R.C. 2941.25 (the merger statute) is a legal issue. Thus, an
appellate court will review a trial court’s decision de novo without affording it any deference.
See
State v. Love
, 4 th Dist. Hocking No. 13CA16,
In State v. Nguyen , 4th Dist. Athens No. 12CA14, 2013–Ohio-3170, ¶ 103, we set forth the analysis that applies when determining if offenses should merge under R.C. 2941.25:
“Through a series of opinions the Supreme Court of Ohio has advised and re-advised lower courts on the difficult task of applying Ohio's multiple-count statute to determine which criminal convictions require merger.' [ State v. Delawder , 4th Dist. Scioto App. No. 10CA3344, 2012–Ohio–1923, ¶39]. In the plurality decision of State v. Johnson ,128 Ohio St.3d 153 , 2010–Ohio–6314, 942 N.E.2d 1061, the Court expressly overruled its then current test for merger. Under the new test, the trial court must first determine ‘whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other.’ (Emphasis sic). Johnson at ¶48. If the offenses are so alike that the same conduct can subject the accused to potential culpability for both, they are ‘of similar import’ and the court must proceed to the second step. The court must then determine whether the offenses in fact were committed by the same conduct, i.e., committed as a single act with a single animus. Id. at ¶49. If so, merger is necessary. However, if the offenses resulted from separate acts or were performed with a separate animus, or if the commission of one offense will never result in the commission of the other, the offenses will not merge. Id. at ¶51.” In the case sub judice, the facts adduced at trial appear to satisfy the first part of
this new test. It is indeed possible to possess the chemicals necessary to manufacture meth, and then to manufacture the drug itself. We, however, agree with the trial court's analysis with regard to the second part of this test. In other words, were these crimes committed by the same conduct or with the same animus? We agree with the trial court that the answer is no. *10 10 Counts one and two of the indictment charged the appellant with manufacturing meth on specific dates. However, count three charged him with having the requisite chemicals to manufacture meth during the interval between those dates. Appellant does not challenge the sufficiency of the evidence to support convictions on those three counts, and we find sufficient evidence from our review of the record. Assuming, for purposes of argument, that had appellant been found guilty of the possession of chemicals and the manufacture of meth on the same days, a different issue may have been presented. Instead, appellant possessed those chemicals for more than a week between the two dates on which he was charged with illegal manufacture and, apparently, appellant engaged in an extensive cooking process. In our view, the trial court was correct, that a separate animus exists for count three. Thus, the merger of the convictions is not required under R.C. 2941.25(A). For these reasons, we hereby overrule appellant's third assignment of error.
IV
Appellant’s fourth assignment of error involves typographical errors in the State’s
August 19, 2013 Bill of Particulars. That document states that counts one and two of the
indictment charged a violation of “R.C. 2925.041" when it should have stated that those counts
charged a violation of “R.C. 2925.04.” Appellant argues that these mistakes are error “as a
matter of law” and that his convictions on counts one and two should be vacated. We disagree.
{¶ 25}
First, appellant cites nothing in the record to show that he raised this issue during
the trial court proceeding. Thus, appellant waived any error that could have been brought to the
trial court’s attention at a time when it could have been corrected. See
State v. Keeley
, 4 th Dist.
Washington No. 13CA34,
plain error. Notice of Crim.R. 52(B) plain error should be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.
State v.
Gardner
,
contained an extra numeral “1", the name and description of the offense are both correctly stated. Also, appellant was aware of the offenses for which he was being tried. In short, appellant has not demonstrated any prejudice, and we cannot conceive of how he could have suffered any prejudice. Appellant cites Crim.R. 7(D), as well as State v. Davis , 4 th Dist. Highland No.
06CA26,
affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
[Cite as
State v. Sluss
,
Harsha, J., concurring: In his third assignment of error, appellant, Richard Sluss, asserts that the trial
court erred in not merging his convictions for illegal manufacture of drugs (2 counts) with his conviction of one count of illegal possession of chemicals for the manufacture of drugs. The trial court did not merge the counts because “while you must have chemicals to commit Counts One and Two [the illegal manufacture counts], it appears from the testimony that there were always plenty of chemicals there to produce the meth whenever desired.” That is, there is testimony that Lacey Kelly got chemicals for Sluss to manufacture methamphetamine that Sluss cooked “about every day.” Based on the evidence adduced at trial, it is clear that Sluss had chemicals used to
manufacture methamphetamine “over and above” what he used in the two “cooks” on June 13 and 27 that formed the basis for Counts One and Two. Under these circumstances, I concur in judgment and opinion on this assignment of error, i.e., that although the offenses in Counts One and Two and Count Three are of similar import, they involve different conduct; Count Three involved possession of illegal chemicals in addition to what was used in the two “cooks” that are the basis of Counts One and Two.
[Cite as
State v. Sluss
,
JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee to recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, J.: Concurs in Judgment & Opinion
Harsha, J.: Concurs in Judgment & Opinion with Opinion For the Court BY: Peter B. Abele
Presiding Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
Notes
[1] Different counsel represented appellant during the trial court proceedings.
[2] Appellant’s brief does not contain a separate statement of the assignments of error. See App.R. 16(A)(3). Thus, we have taken the assignments of error from the brief's table of contents.
[3] Although the evidence adduced at the suppression hearing and at trial is somewhat confusing, it appears that the warrant specified the “orange and white” trailer at the front of the property said to be owned or occupied by Roy Sluss, appellant’s brother.
[4] Evid.R. 705 states “[t]he expert may testify in terms of opinion, or inference, and give the expert’s reasons therefor, after disclosure of the underlying facts or data.”
[5] R.C. 2941.25(A) states “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.”
[6] In State v. Creech,
[7] Our Fifth District colleagues have recently concluded that these two crimes are allied offenses of similar import.
th
th
See State v. Davidson, 5
Dist. Perry No. 12CA7,