STATE OF OHIO v. RONNIE L. WILEY
Appellate Case No. 2011-CA-8
Trial Court Case No. 10-CR-133
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY
February 10, 2012
[Cite as State v. Wiley, 2012-Ohio-512.]
OPINION
Rendered on the 10th day of February, 2012.
R. KELLY ORMSBY, III, Atty. Reg. #0020615, and DEBORAH S. QUIGLEY, Atty. Reg. #0055455, Darke County Prosecutor‘s Office, Darke County Courthouse, 3rd Floor, 504 South Broadway, Greenville, Ohio 45331
Attorney for Plaintiff-Appellee
NICOLE L. HARRISON, Atty. Reg. #0086301, Goubeaux & Brand, Post Office Box 158, Greenville, Ohio 45331
Attorney for Defendant-Appellant
HALL, J.
{¶ 1} Ronnie Wiley appeals his convictions on three drug-related charges. A jury found Wiley guilty of illegal assembly or possession of chemicals for the manufacture of
{¶ 2} Wiley presents four assignments of error. He alleges that the state failed to establish an adequate chain of custody for some of the criminal tools admitted at trial as exhibits. Wiley also alleges that the convictions are not supported by legally sufficient evidence and that the convictions are against the manifest weight of the evidence. Wiley lastly alleges that the trial court should have sua sponte given the jury a limiting instruction regarding certain witness testimony.
{¶ 3} Finding no merit in any of these allegations, we affirm.
A. The Evidence
1. The items found on Wiley‘s property
{¶ 4} Detective Christopher Clark, a narcotics detective with the Darke County Sheriff‘s Office, received information linking Wiley to a methamphetamine manufacturing operation. Clark‘s investigation revealed that meth was being manufactured in a rural, one-room cabin at the end of Wiley Road in Darke County. This short road branches off Braffetsville-North Road less than a mile north of Wiley‘s home. While he does not own the property on which the cabin sits, Wiley was the one who built the cabin. Around 5 a.m. on May 20, 2010, Detective Clark, along with the Darke County special response team (SRT), other Darke County officers, including Detective David Hawes, and officers from two adjacent counties, executed a search warrant on the cabin. Roughly 10-15 minutes later, Clark,
{¶ 5} In Wiley‘s house officers found a baggie of methamphetamine in the pocket of a pair of pants lying on a bathroom floor. Wiley admitted to Detective Clark that the pants were his. Near the house sits a large, detached garage. In the garage officers found numerous chemicals. Paint thinner and Coleman fuel were found. Also found were several instant-cold packs and a box of nasal decongestant. Several other items were also found: a Mountain Dew bottle with plastic tubing coming out of it. and a Mountain Dew cup with copper tubing in it. In a vehicle, copper and plastic tubing like the kind found in the Mountain Dew bottle and cup was found. Coffee filters, an empty box of pseudoephedrine, and a stripped lithium battery were also found. Two digital scales and, nearby, numerous small ziploc bags were found. The last pertinent items found were a round glass mirror, coated with residue, and a razor blade. Found behind Wiley‘s garage were an altered propane tank and mason jars coated with residue.
2. Wiley‘s admissions
{¶ 6} Wiley was not home when the officers arrived, but he showed up about an hour later. Detective Clark interviewed Wiley then. At first Wiley claimed not to know what was going on, saying that he did not mess with meth and did not know how to make it. After Clark told Wiley that he had recovered pharmacies’ pseudoephedrine-sales logs that contained Wiley‘s name in numerous places, Wiley admitted that he knew a little about making it. Wiley told Clark that he did not cook the meth himself and that it was not cooked on his property. He
{¶ 7} A few days later, Detective Clark interviewed Wiley again at the Sheriff‘s Office. Clark asked him about his role in the manufacturing process. When Clark asked Wiley if he had ever bought any materials, Wiley admitted that he had bought lithium batteries. As they talked, Wiley admitted that he had seen others perform parts of the manufacturing process. He began to volunteer information about their process. Wiley told Clark that, after making a batch, they tried to reuse some materials because, Wiley said, it would make the meth “stronger.” Clark asked him whether they reused coffee filters, and Wiley replied no, they throw them away after one use. Wiley admitted that he bought pseudoephedrine anywhere and everywhere he could. Wiley also admitted that he used meth.
3. The expert testimony
{¶ 8} At trial, a forensic chemist from the Miami Valley Regional Crime Laboratory, Brooke Ehlers, testified as an expert in clandestine methamphetamine labs. Ehlers first explained what, in general, would constitute a basic meth lab:
A basic methamphetamine lab would consist of pseudoephedrine or ephedrine. Typically we see at the laboratory pseudoephedrine which can be purchased over the counter or behind the pharmacy counter now at the local drugstore. An organic solvent. Typically what I see at the laboratory most often is Coleman fuel. Lithium batteries. The most common thing that I‘m seeing
now are one pot cooks which is where all the ingredients are being done in one container. And the way that they‘re using or the way they‘re doing that is using cold packs that would be broken that contain ammonium nitrate instead of the anhydrous ammonia that you might have heard where they were stealing from the tanks where it‘s the gas form, and that would be contained within one container which would be the first part of the cook. The second part of the cook would be a salting out process that would include an acid product. (Tr. 394-395).
{¶ 9} Ehlers analyzed some of the items found in Wiley‘s garage. She found that the residue on the mirror was methamphetamine. In several of the mason jars Ehlers found an acidic liquid that was consistent with the second part of the cooking process. “Propane tanks,” Ehlers said, “are used to store anhydrous ammonia that has been taken from larger nurse anhydrous ammonia tanks.” (Tr. 403). She said that Coleman fuel “is the most common organic solvent” that she sees. (Tr. 404). Ehlers explained that it is used “to extract the pseudoephedrine from the cold tablets.” (Tr. 404). Paint thinner is also an organic solvent, she said, that could be used for the same purpose. About the instant-cold packs, Ehlers said that “these contain typically ammonia nitrate which could be a substitute for the anhydrous ammonia in the cooking process.” (Tr. 405). The Mountain Dew bottle with plastic tubing, said Ehlers, is a gas generator used in the second part of the cooking process. And the Mountain Dew cup with copper tubing, she said, “could possibly be either * * * part of a gas generator or possibly where anhydrous ammonia was being made.” (Tr. 405).
{¶ 10} In the first assignment of error, Wiley alleges that the trial court erred when it admitted four of the state‘s exhibits. He contends that the state failed to establish an adequate chain of custody. “Chain of custody is a part of the authentication and identification mandate set forth in
{¶ 11} “The threshold standard for authenticating evidence pursuant to
{¶ 12} But “a strict chain of custody is not always required in order for physical evidence to be admissible.” Richey at 360, quoting State v. Wilkins, 64 Ohio St.2d 382, 389, 415 N.E.2d 303 (1980). A chain is needed only when an item is by nature fungible and indistinguishable, having no unique characteristics, like a pill. State v. Gunner, 6th Dist. Lucas App. No. L-06-1385, 2008-Ohio-1857, ¶ 16. The proponent of such an item must establish a chain of custody “essentially [to] show[] that the offered item of evidence is authentic as having been in the continuous possession of the state, thus eliminating the possibility that the item has been tampered with or altered from its original form.” Bowling at ¶ 32. This may be done “through direct testimony or by inference.” (Citation omitted.) Gunner at ¶ 17. “Usually, an identifying witness testifies to a chain of custody in order to demonstrate that no tampering has occurred and that the physical integrity of the evidence is intact.” Id. at ¶ 16, citing Richey at 360.
{¶ 13} “Given the low threshold for admissibility under
{¶ 14} Wiley contends that the state failed to establish an adequate chain of custody for Exhibit 74, the instant-cold packets; Exhibit 75, the nasal decongestant and a receipt; Exhibit 76, the glass mirror and razor blade; and Exhibit 77, the coffee filters. The items in each of these exhibits were inside a Darke County Sheriff‘s Office evidence envelope (except the instant-cold packs, which were in a paper bag because they did not fit in an envelope). Detective Clark testified that the exhibit items were some of the items found in Wiley‘s
{¶ 15} Wiley points out that Clark was not the one who actually found these items, and the detective who did find them did not testify. Wiley contends that because Clark did not actually retrieve the items his testimony cannot establish their chain of custody. We disagree. The trial court heard the testimony of Clark and Ehlers that could be sufficient to establish with reasonable certainty that substitution, alteration, or tampering of the exhibit items did not occur. Therefore it was reasonable of the court to conclude that the state satisfied the authentication standard and the trial court did not abuse its discretion by admitting the
{¶ 16} The first assignment of error is overruled.
C. The Sufficiency and Weight of the Evidence
{¶ 17} In the second and third assignments of error, Wiley alleges respectively that the evidence is insufficient to support any of the convictions and that the convictions are contrary to the manifest weight of the evidence.
1. The sufficiency of the evidence
{¶ 18} “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.” (Citation omitted.) State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). Circumstantial and direct evidence possess “the same probative value.” Id. At 272. And “permissible inferences of knowledge, based at least in part upon fact, could prove an essential element of the offense.” State v. Jordan, 89 Ohio St.3d 488, 495, 733 N.E.2d 601 (2000). “The inquiry is, after viewing the evidence in the light most favorable to the prosecution, whether any reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id., citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶ 19} Each of the three offenses here requires proof that the accused possessed something, just as their names suggest. Illegal assembly or possession of chemicals for the manufacture of drugs requires proof that the accused “possess[ed] one or more chemicals that
{¶ 20} Possession, “having control over a thing or substance,”
{¶ 21} Wiley points out that no direct evidence specifically links him to the chemicals or items found in his garage. While he is correct, such evidence is unnecessary. The fact of possession may be inferred. And the evidence in this case permitted the jury to infer that Wiley (constructively) possessed the chemicals and items. Contrary to Wiley‘s contention, this inference is supported by more than his “mere access” to the items through ownership of the
{¶ 22} The second assignment of error is overruled.
2. The manifest weight of the evidence
{¶ 23} Wiley‘s manifest-weight argument primarily relies on the sufficiency-of-the-evidence argument. To that argument he adds a specific contention regarding the conviction for illegal assembly or possession of chemicals for the manufacture of drugs. Wiley argues that the evidence weighs against finding that he had the intent to manufacture methamphetamine because witnesses testified expressly that they had not seen him making it and no evidence contradicts their testimony.
{¶ 24} Under the manifest-weight standard, an appellate court acts like a “thirteenth juror” and examines the factfinders’ resolution of the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). This is the test: “The 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 jury 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. Hunter, — Ohio St.3d —, 2011-Ohio-6524, ¶ 119, quoting Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983). Regarding the possession element, based on our review of the evidence presented, the most pertinent parts of which we discussed above, we cannot say that the jury clearly lost its way in finding that the state proved the possession element for each offense. Nor can we say that the jury clearly lost its way in finding that the state had proved Wiley‘s intent to manufacture methamphetamine.
{¶ 25} To be convicted of illegal assembly or possession of chemicals for the manufacture of drugs, the state must prove that the accused possessed a chemical “with the intent to manufacture a controlled substance * * * in violation of section 2925.04 of the Revised Code.”
{¶ 26} Wiley‘s intent may reasonably be inferred from the evidence. What the Fourth District said about a defendant in a similar case is also true of Wiley: “Even if appellant‘s participation was, as she suggests, minimal, appellant nonetheless played a role in the manufacturing of methamphetamine.” Moon at ¶ 24. Wiley‘s statements show that he played a role, albeit by his admission, perhaps a small role, in the manufacturing process–he bought pseudoephedrine and batteries; he knew how meth was made; he cleaned up the place where the meth was being made. Wiley‘s admissions allow the conclusion that he intended methamphetamine to be manufactured. Like Wiley, the defendant in the Fourth District‘s case asserted that no direct evidence linked her to the manufacture of methamphetamine. We agree with the court‘s response:
All of these circumstances combined help to show that appellant knowingly assembled or possessed one or more chemicals for the manufacture of methamphetamine with the intent to manufacture methamphetamine. Her assertion that the prosecution lacks direct, physical evidence to tie her to the crime may be correct as certainly worthy of argument before the trier of fact, but nothing prohibits the prosecution from proving the elements of the crime with circumstantial evidence. Id.
{¶ 27} The third assignment of error is overruled.
{¶ 28} In the fourth assignment of error, Wiley alleges that the trial court erred by failing to give the jury a limiting instruction on the conduct of others as probative evidence against Wiley himself. During the testimony of two witnesses, the jury heard about people associated with Wiley cooking methamphetamine in the Wiley Road cabin. The judge told the parties that he was considering whether to give an instruction “about whether other people‘s conduct is probative or not,” noting that “the inferences and allegations of other‘s conduct may or may not be relevant.” (Tr. 228). The judge invited the parties’ thoughts on the matter, saying, “It‘s something I have to think about because it‘s out there. So you might want to help me think my way through it as we get there.” (Tr. 228-229). Ultimately, Wiley never requested such an instruction and the court did not give one on its own.
{¶ 29} Wiley concedes that, by not requesting the instruction, he waived all but plain error. See State v. Crowley, 2d Dist. Clark App. No. 2009 CA 65, 2009-Ohio-6689. This Court has recognized that while “a defendant is entitled to an appropriate instruction limiting the scope of a jury‘s consideration of potentially prejudicial evidence that is admitted for a limited purpose * * * *, a defendant may rationally choose not to avail himself of his right to a limiting instruction because of his concern that it will only remind the jury of the evidence to which the instruction applies, and thereby reinforce the prejudice.” State v. McDaniel, 2d Dist. Clark App. No. 2853, 1992 WL 206759, *3 (Aug. 19, 1992). “Because there may be good reasons for a defendant to elect to waive his right to a limiting instruction,” we said, “a reviewing court should be reluctant to find plain error where a defendant has not requested a limiting instruction.” Id. In the present case, Wiley may have decided not to seek the limiting
{¶ 30} The fourth assignment of error is overruled.
{¶ 31} We have overruled each assignment of error presented. Therefore the trial court‘s judgment is affirmed.
FROELICH and FAIN, JJ., concur.
Copies mailed to:
R. Kelly Ormsby, III
Deborah S. Quigley
Nicole L. Harrison
Hon. Jonathan P. Hein