State v. White, 23955 (5-21-2008)State v. White, 23955 (5-21-2008)
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{¶ 1} Defendant-Appellant, Cynthia A. White, has appealed from her convictions in the Summit County Court of Common Pleas. This Court affirms.
I
{¶ 2} On or about January 16, 2007, Officers Justin Morris and Brian Cresswell arrived at White‘s residence to conduct a “knock and talk.” The officers decided to investigate White based on a tip from Officer Brian Simcox. Officer Simcox had received word from a local pharmacy that White purchased
{¶ 3} Over the next week, Officers Morris and Cresswell continued to watch White‘s residence. They noticed a vehicle parked at the residence and ran the vehicle‘s plates through their database. Officer Morris discovered that the registered owner of the vehicle had an outstanding arrest warrant, so on or about January 22, 2007, he and Officer Cresswell followed and stopped the vehicle. The officers discovered that White‘s son was driving the vehicle rather than the registered owner. Officers conducted a search of the vehicle and discovered a container of red phosphorous in the vehicle‘s trunk along with several coffee filters. Officers Morris and Cresswell relayed this information, as well as the information about their knock and talk at White‘s residence, to Officer David Crockett, a member of the Clandestine Laboratory Enforcement Team (“CLET“).
{¶ 4} On January 23, 2007, Officer Simcox and Officer Crockett arrived at White‘s residence to perform another “knock and talk.” Both officers had extensive training in dealing with methamphetamine labs and immediately recognized the smell associated with methamphetamine production when White opened the door. The officers asked White to step outside the residence and
{¶ 5} After finishing their initial protective sweep, officers arrested and Mirandized White. She spoke with Officer Crockett for a short period of time and made several statements about her involvement with the methamphetamine. White then voluntarily consented to allow the officers to search her residence. She signed a consent form, and the officers performed a full search of her residence.
{¶ 6} On February 6, 2007, the grand jury indicted White on the following charges: (1) illegal manufacturing of drugs, a first degree felony, pursuant to
{¶ 7} On August 23, 2007, the jury found White guilty on all charges. Subsequently, the trial court sentenced White to a total of four years in prison and
{¶ 8} White‘s appeal is now before this Court, raising three assignments of error for our review. We have rearranged the assignments of error to facilitate our review.
II
Assignment of Error Number Three
“THE TRIAL COURT ERRORED IN DENYING APPELLANT‘S MOTION TO SUPPRESS, AS THERE WAS NO PROBABLE CAUSE TO BELIEVE THE RESIDENCE WAS BEING USED IN THE ILLEGAL MANUFACTURE OR METHAMPHETAMINE.” (Sic.)
{¶ 9} In her third assignment of error, White argues that the trial court erred in denying her motion to suppress because the officers’ warrantless search of her apartment was not based on probable cause. Specifically, she argues that officers did not have sufficiently reliable evidence that an exigency existed before they entered her apartment. We disagree.
{¶ 10} In making its ruling on a motion to suppress, the trial court makes both legal and factual findings. State v. Jones (Mar. 13, 2002), 9th Dist. No. 20810, at *1. It follows that this Court‘s review of a denial of a motion to suppress involves both questions of law and fact. State v. Long (1998), 127 Ohio App.3d 328, 332. As such, this Court will accept the factual findings of the trial court if they are supported by some competent and credible evidence. State v. Searls (1997), 118 Ohio App.3d 739, 741. However, the application of the law to those facts will be reviewed de novo. Id.
{¶ 11} The Fourth Amendment protects individuals from warrantless searches and seizures that are not based upon probable cause, nor issued by a neutral and detached magistrate. Section 14, Article I of the Ohio Constitution mimics the language of the Fourth Amendment and similarly guards against unreasonable searches and seizures. State v. Carrigan, 9th Dist. No. 21612, 2004-Ohio-827, at ¶ 10. “Absent exigent circumstances, a warrantless search or seizure effected in a home is per se unreasonable.” Id., citing Payton v. New York (1980), 445 U.S. 573, 590. The exigent circumstances doctrine requires that both probable cause and exigent circumstances exist before an officer initiates a warrantless entry pursuant to the doctrine. State v. Sandor, 9th Dist. No. 23353, 2007-Ohio-1482, at ¶ 7, citing State v. Marlow (Feb. 28, 1996), 9th Dist. No. 17400, at *2, citing Payton, 445 U.S. at 588-89.
{¶ 12} Initially, we note that White has not challenged this Court‘s prior determination that the operation of a methamphetamine production laboratory constitutes an exigent circumstance. See Sandor at ¶ 10-12. See, also,
{¶ 13} “`[P]robable cause is the existence of circumstances that warrant suspicion.‘” State v. Tejada, 9th Dist. No. 20947, 2002-Ohio-5777, at ¶ 8, quoting State v. Young, 11th Dist. No. 2000-A-0078, 2001-Ohio-4284, ¶ 23.1 “[T]he standard for probable cause does not require a prima facie showing of criminal activity; rather, the standard requires `only a showing that a probability of criminal activity exists.‘” Tejada at ¶ 8, quoting Young at ¶ 23. Moreover, in analyzing
{¶ 14} The record reflects that two officers arrived at White‘s Akron residence on January 23, 2007, to conduct a “knock and talk” and to acquire additional information that might help officers obtain a search warrant. One officer, Officer Simcox, was a ten year veteran with Drug Enforcement Agency training in methamphetamine lab recognition, dismantling, and cleaning. The second officer, Officer Crockett, was a seven year veteran and member of CLET. Both officers testified at the suppression hearing. Both indicated that when White opened her door they immediately smelled an overwhelming odor consistent with the odor that they have been trained to associate with methamphetamine production. Officers Simcox and Crockett further indicated that they believed they had probable cause to enter White‘s home at this point based on this odor and the information they had available to them before arriving at White‘s residence.
{¶ 15} Officer Simcox testified that he went to White‘s residence to question her because her name had appeared in the “lab books” that the local pharmacies use to keep track of certain purchasers. Officer Simcox explained that when an individual purchases pseudoephedrine, a drug used to manufacture methamphetamine, pharmacies log that individual‘s name in a lab book and
{¶ 16} Officer Crockett testified that he went to White‘s residence with Officer Simcox to follow up on certain events that had occurred earlier in the week. He specified that approximately one week earlier, two other officers conducted a “knock and talk” at White‘s residence and noticed a suspicious odor emanating from within. However, those officers lacked methamphetamine identification training and could not justify entering White‘s home on that basis. Officer Crockett also testified that one day earlier, those same officers stopped White‘s son for an unrelated traffic violation and found a canister, containing “a red substance” and marked “red p” in the trunk of the vehicle. Officer Crockett explained that red phosphorus is yet another substance used in the production of methamphetamine. Accordingly, he also went to White‘s home on January 23, 2007, to investigate her possible involvement in methamphetamine production.
{¶ 17} The record reflects that after Officers Simcox and Crockett smelled the odor coming from White‘s residence, they brought her outside and conducted a sweep of her home. Both officers testified that methamphetamine laboratories are extremely dangerous and that they entered White‘s home because they believed that it contained such a lab and feared that an explosion or other harmful incident might be imminent. White argues that the officers did not have probable cause to
{¶ 18} White‘s arguments fail for several reasons. First, the traffic stop of the vehicle her son was driving occurred the day before Officer Simcox and Officer Crockett‘s investigation, not over a week before. Second, while information certainly can lose its relevancy and reliability if not acted on in a reasonable time, we are not aware of any law that officers must immediately act upon any information they receive. Officers Simcox and Crockett went to White‘s home approximately a week after other officers had been there and smelled an odor from within. We cannot say that the passage of one week detracted from the relevancy or reliability of this evidence. Third, both Officer Simcox and Officer Crockett were extensively trained in the identification of methamphetamine laboratories. Officer Crocket testified that he had dealt with at least 100 such laboratories, and Officer Simcox testified that upon smelling the odor there was “no question” that White‘s residence contained a methamphetamine laboratory. Given the officers’ extensive training and the other evidence available to them at the time, we must conclude that the officers had probable cause to enter White‘s home. See Fry at ¶ 36 (noting that probable cause must be accessed based on the totality of the circumstances).
{¶ 19} The trial court did not err in denying White‘s motion to suppress. Therefore, White‘s third assignment of error lacks merit.
Assignment of Error Number One
“THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE SINCE THE STATE OF OHIO FAILED TO PROVE EACH AND EVERY ELEMENT OF THE INDICTED OFFENSES BEYOND A REASONABLE DOUBT.”
Assignment of Error Number Two
“THE TRIAL COURT ERRED WHEN IT OVERRULED A TIMELY DEFENSE MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AS THERE WAS NOT SUFFICIENT EVIDENCE PRESENTED BY THE STATE OF OHIO TO ESTABLISH A PRIMA FACIE CASE OF ILLEGAL MANUFACTURE OF DRUGS OR ILLEGAL POSSESSION OF CHEMICALS FOR THE MANUFACTURE OF DRUGS TO WARRANT THE CASE BEING SUBMITTED TO THE JURY.”
{¶ 20} In her first assignment of error, White argues that her illegal manufacturing and illegal possession convictions were against the manifest weight of the evidence. In her second assignment of error, White argues that these same convictions were based on insufficient evidence. We disagree.
{¶ 21} A review of the sufficiency of the evidence and a review of the manifest weight of the evidence are separate and legally distinct determinations. State v. Gulley (Mar. 15, 2000), 9th Dist. No. 19600, at *1. “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.” Id., citing State v. Thompkins (1997), 78 Ohio St.3d 380, 390 (Cook, J., concurring). In order to determine whether the evidence before the trial court was sufficient to sustain a conviction, this Court must review the evidence in a light most favorable to the prosecution. State v. Jenks (1991), 61 Ohio St.3d 259, 279. Furthermore:
“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.” Id. at paragraph two of the syllabus; see, also, Thompkins, 78 Ohio St.3d at 386.
In State v. Roberts, this Court explained:
“[Sufficiency is required to take a case to the jury[.] * * * Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.” (Emphasis omitted.) State v. Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462, at *2.
Accordingly, we address White‘s challenge to the weight of the evidence first, as it is dispositive of her claim of sufficiency.
{¶ 22} In determining whether a conviction is against the manifest weight of the evidence an appellate court:
“[M]ust 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 (1986), 33 Ohio App.3d 339, 340.
{¶ 23}
{¶ 24} White argues that the evidence at trial did not support the conclusion that she either illegally manufactured or illegally possessed any chemicals or items necessary to produce methamphetamines. She points to the innocuity of the separate items police found in her home, alleging that “these items, alone are not illegal.” Further, she claims that other individuals such as her landlord and a former boyfriend had access to her basement and could have stored any unlawful items there without her knowledge.
{¶ 25} Our review of the record convinces us that the jury did not lose its way in convicting White of both illegal manufacturing and illegal possession. Officers Simcox and Crockett both testified that when they performed a “knock and talk” at White‘s residence on January 23, 2007, they were both immediately overwhelmed by a strong odor. Both officers had extensive training in methamphetamine recognition, and both testified that the odor emanating from White‘s home was consistent with that of methamphetamine manufacturing.
{¶ 26} After officers performed a protective sweep of White‘s home and obtained her consent to search the home, they uncovered the following materials: a gallon of acetone; approximately one hundred boxes of matchbooks, many of which had been stripped of their striker plates; Naptha; Coleman fuel; crystal iodine; coffee filters stained with methamphetamine residue; bi-level liquid
{¶ 27} As previously noted, White claims that she had no knowledge of any items that were stored in her basement because she rarely frequented the basement, she shared the basement with her landlord who stored many of his own items there, and other individuals might have had access to her unattended residence during her unrelated stay in jail a short while before Officers Simcox and Crockett came to her residence. White‘s testimony at trial, however, contradicted the earlier statements that she made to officers on the night of January 23, 2007. The record reflects that after officers took White into custody and Mirandized her, she made several statements to Officer Crockett. Specifically, she told Officer Crockett that she let another person manufacture methamphetamines in her home because she needed the money. She further stated that she helped that person by washing jars and stripping the striker plates from matchbooks. At trial, White claimed that she never made these statements to Officer Crockett. While admitting that she used methamphetamines and noticed a strong chemical smell in her house, she maintained that she had no knowledge of any methamphetamine lab or production. Since the officers involved in White‘s
{¶ 28} Moreover, even if the evidence did not support White‘s acting as a principal in the manufacturing and possession of methamphetamines, the trial court also instructed the jury on aiding and abetting.
{¶ 29} “To aid is to assist.” State v. Williams, 9th Dist. No. 21840, 2004-Ohio-4316, at ¶ 19, quoting State v. Sims (1983), 10 Ohio App.3d 56, 58. For a person to be convicted of aiding or abetting another in a crime, “the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime.” State v. Johnson (2001), 93 Ohio St.3d 240, syllabus. Further, the evidence must show that the defendant expressed concurrence with the unlawful act or intentionally did something to contribute to an unlawful act. State v. Stepp (1997), 117 Ohio App.3d 561, 568.
{¶ 30} The record supports a finding that White aided and abetted another in the illegal manufacturing and possession of methamphetamines. By her own statements to Officer Crockett, she admitted that she helped to clean jars and strip matchbooks. Officer Simcox testified that methamphetamine manufacturers often strip matchbooks of their strike plates because the plates contain red phosphorus. He explained that red phosphorous is an ingredient used to make
{¶ 31} Lastly, White argues that her conviction for illegal manufacturing should not have been a first degree felony because the State failed to prove that she committed the offense within a thousand feet of a school. See
“If the drug involved in the violation is methamphetamine and if the offense was committed in the vicinity of a * * * school, * * * illegal manufacture of drugs is a felony of the first degree[.]”
{¶ 32} White argues that the method the State used to calculate the distance between her residence and the closest elementary school was unsound. The record reflects that Officer Morris measured the distance using a measuring wheel from the traffic unit and verified the distance, approximately 965 feet, with a traffic laser. The record further reflects that White failed to object to Officer Morris‘s
{¶ 33} To preserve an alleged error for appeal, a party must timely object and state the specific grounds for the objection. State v. Dudukovich, 9th Dist. No. 05CA008729, 2006-Ohio-1309, at ¶ 24. A failure to do so results in a forfeiture of the objection and limits any claim of error on appeal to “plain errors or defects affecting substantial rights.” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, at ¶ 15-17, quoting Crim.R. 52(B). Yet, this Court will not construct a claim of plain error on behalf of an appellant who fails to raise such an argument in her brief. See State v. Hairston, 9th Dist. No. 05CA008768, 2006-Ohio-4925, at ¶ 11, citing App.R. 16(A)(7). White failed to object to Officer Morris‘s measurements below and has not argued plain error on appeal. Consequently, we decline to address her argument that his measurements were inaccurate.
{¶ 34} Having disposed of White‘s challenge to the weight of the evidence, we similarly dispose of her sufficiency challenge. See Roberts, supra, at *2. White‘s first and second assignments of error are overruled.
III
{¶ 35} White‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
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(E). 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.
Costs taxed to Appellant.
CARR, P. J., MOORE, J., CONCUR.