State v. Hogue , 2018 Ohio 3887 ( 2018 )

[Cite as State v. Hogue, 2018-Ohio-3887.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
STATE OF OHIO, :
: Case No. 17CA6
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
CONNIE J. HOGUE, :
:
Defendant-Appellant. : Released: 09/19/18
_____________________________________________________________
APPEARANCES:
Darren L. Meade, Parks and Meade, LLC, Columbus, Ohio, for Appellant.
Benjamin E. Fickel, Hocking County Prosecutor, Logan, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} This is an appeal from a Hocking County Court of Common
Pleas judgment entry convicting and sentencing Appellant, Connie Hogue,
on one count of illegal assembly or possession of chemicals for the
manufacture of drugs and one count of aggravated possession of drugs,
felonies of the third and fifth degrees, respectively. On appeal, Appellant
contends that 1) the guilty verdicts were against the manifest weight of the
evidence because the State failed to prove beyond a reasonable doubt that
foil found in the vehicle belonged to her, or that she had the intent to
manufacture methamphetamine; and 2) the admission of the NPLEx
Hocking App. No. 17CA6 2
(National Precursor Log Exchange) records into evidence was without a
foundation to properly establish an exception to the prohibition against
hearsay evidence, and doing so notwithstanding the lack of objection
constituted plain error by the trial court.
{¶2} Because we conclude Appellant’s convictions are supported by
competent, credible evidence, and are not against the manifest weight of the
evidence, her first assignment of error is overruled. Further, because we
conclude the trial court did not commit plain error in allowing the NPLEx
records to be admitted into evidence, Appellant’s second assignment of error
is also overruled. Accordingly, the judgment of the trial court is affirmed.
FACTS
{¶3} Appellant, Connie Hogue, was indicted on three felony counts on
October 20, 2016. Count one of the indictment charged Appellant with
illegal assembly or possession of chemicals (pseudoephedrine and lithium
batteries) for the manufacture of drugs (methamphetamine), a third degree
felony in violation of R.C. 2925.041(A). Count two of the indictment
charged Appellant with aggravated possession of drugs
(hydrocodone/acetaminophen), a fifth degree felony in violation of R.C.
2925.11(A). Count three of the indictment charged Appellant with
aggravated possession of drugs (methamphetamine), a fifth degree felony in
Hocking App. No. 17CA6 3
violation of R.C. 2925.11(A). Each count, as well as the indictment
generally, contained forfeiture specifications pursuant to R.C. 2941.1417
alleging Appellant’s 2006 Toyota Corolla was used to facilitate the offense
and was subject to forfeiture.
{¶4} The indictment arose from activities which occurred on or about
August 16, 2016, which began with a call to law enforcement from a Kroger
pharmacist advising that Michael T. Heller, Appellant’s passenger and co-
defendant, had just purchased pseudoephedrine, having previously been
blocked from purchasing pseudoephedrine twice. In response to the call,
law enforcement followed Appellant’s vehicle out of the Kroger parking lot
and initiated a traffic stop after observing a de minimis traffic violation. A
search conducted pursuant to a K-9 alert on the vehicle yielded a box of
pseudoephedrine and a package of lithium batteries. Heller told the
detectives that he had just purchased the pseudoephedrine, which he planned
to give to Appellant in exchange for methamphetamine. He also told them
that Appellant had just separately purchased the lithium batteries. A receipt
located with the batteries indicated they had been purchased at Kroger just
prior to the traffic stop. Additionally, the search of Appellant’s vehicle
resulted in the discovery of an aluminum can located just behind the driver’s
Hocking App. No. 17CA6 4
seat of the vehicle, where Appellant was seated, with residue on it that was
later identified as methamphetamine.
{¶5} Appellant was brought to trial before a jury on March 21, 2017.
The State presented three witnesses: Dustin J. Robinson, a detective with the
Hocking County Sheriff’s Office who served as the investigating officer;
Michael Heller, who was a passenger in Appellant’s vehicle at the time of
the traffic stop and who was also a co-defendant; and Trent Woodgeard, a
detective with the Hocking County Sheriff’s Office and also a K-9 handler.
The State introduced NPLEx records related to both Appellant’s and
Heller’s purchases, attempted purchases and blocked purchases of
pseudoephedrine. Appellant presented no witnesses in her defense, nor did
she testify.
{¶6} The State’s theory at trial, which was supported by the testimony
of its witnesses, was that Heller purchased pseudoephedrine at the request of
Appellant, which he planned to provide to Appellant in exchange for
methamphetamine. Further, the State argued Appellant herself purchased
the lithium batteries, which she intended to use, along with the
pseudoephedrine purchased by Heller, to manufacture methamphetamine.
The State argued Appellant’s intent in assembling these items was to
manufacture methamphetamine, which was further evidenced by the fact
Hocking App. No. 17CA6 5
that methamphetamine residue was found on an aluminum can in
Appellant’s vehicle.
{¶7} The State further argued the NPLEx logs demonstrated a pattern
of Appellant and Heller both purchasing pseudoephedrine, sometimes at the
same time, and being blocked from purchasing on different occasions due to
exceeding the maximum amount permitted by law. Defense counsel argued
the NPLEx logs equally indicated that Appellant’s purchases could have
been consistent with legitimate use of the medication as directed to treat
allergies, and that most individuals would not be aware there were limits
regarding the amount of pseudoephedrine that can lawfully be purchased.
Defense counsel further argued that use of the NPLEx system casts a net far
too wide, which unfairly calls into question individuals who may simply be
purchasing for legitimate use, and who are taking the medication as directed.
{¶8} The State orally dismissed count two, as well as the forfeiture
specifications, during trial and the jury was instructed on the remaining
counts of the indictment. Appellant was ultimately found guilty as charged
in the indictment on count one and count three, illegal assembly or
Hocking App. No. 17CA6 6
possession of chemicals for the manufacture of drugs and aggravated
possession of drugs, respectively. This timely appeal followed.1
ASSIGNMENTS OF ERROR
"I. THE GUILTY VERDICT FOR AGGRAVATED POSSESSION
AND ILLEGAL ASSEMBLY OR POSSESSION OF CHEMICALS
FOR THE MANUFACTURE OF DRUGS WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THE
STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT
THAT THE FOIL FOUND IN THE VEHICLE BELONGED TO MS.
HOGUE, AND THAT MS. HOGUE HAD THE INTENT TO
MANUFACTURE METHAMPHETAMINE.
II. THE ADMISSION INTO EVIDENCE OF NPLEX RECORDS WAS
WITHOUT A FOUNDATION TO PROPERLY ESTABLISH AN
EXCEPTION TO [SIC] PROHIBITION AGAINST HEARSAY
EVIDENCE AND DOING SO NOTWITHSTANDING THE LACK
OF OBJECTION CONSTITUTED PLAIN ERROR BY THE TRIAL
COURT."
ASSIGNMENT OF ERROR I
{¶9} In her first assignment of error, Appellant contends that the jury's
finding of guilty on both the aggravated possession and illegal assembly or
possession of chemicals for the manufacture of drugs charges were against
the manifest weight of the evidence, arguing that the State failed to prove,
beyond a reasonable doubt, that the foil found the in the vehicle belonged to
1
Timothy P. Gleeson originally filed an Anders Brief on behalf of Appellant on June 13, 2017, alleging
there were no meritorious arguments for review and requesting to withdraw from representation. This
Court no longer permits the filing of Anders briefs, as explained in State v. Wilson, 2017-Ohio-5772, 83
N.E.3d 942 (4th Dist.), but this Court granted Gleeson’s request to withdraw and appointed Appellant’s
current counsel, Darren L. Meade, who sets forth two assignments of error on Appellant’s behalf.
Hocking App. No. 17CA6 7
her, or that she had the intent to manufacture methamphetamine. The State
contends that the evidence presented, which included the presence of
pseudoephedrine and lithium batteries in Appellant's vehicle, along with a
receipt for the purchase of the batteries on the same day, the presence of
methamphetamine residue on an aluminum can found right behind the
driver's seat of Appellant's vehicle, which she was driving at the time of the
traffic stop, as well as testimony from Appellant's co-defendant all provided
the jury with enough evidence for reasonable minds to conclude, beyond a
reasonable doubt, that Appellant possessed methamphetamine and also
possessed one or more chemicals needed for the manufacture of
methamphetamine, and intended them to be used for that purpose.
{¶10} When an appellate court considers a claim that a conviction is
against the manifest weight of the evidence, the court must dutifully
examine the entire record, weigh the evidence, and consider the credibility
of witnesses. The reviewing court must bear in mind however, that
credibility generally is an issue for the trier of fact to resolve. State v.
Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, ¶ 25; State v.
Issa, 93 Ohio St. 3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th
Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. “ ‘Because the trier of
fact sees and hears the witnesses and is particularly competent to decide
Hocking App. No. 17CA6 8
“whether, and to what extent, to credit the testimony of particular
witnesses,” we must afford substantial deference to its determinations of
credibility.’ ” Barberton v. Jenney, 126 Ohio St. 3d 5, 2010-Ohio-2420, 929
N.E.2d 1047, ¶ 20; quoting State v. Konya, 2nd Dist. Montgomery No.
21434, 2006-Ohio-6312, ¶ 6; quoting State v. Lawson, 2nd Dist.
Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). As explained
in Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d
517:
“ ‘[I]n determining whether the judgment below is manifestly
against the weight of the evidence, every reasonable intendment
must be made in favor of the judgment and the finding of facts.
***
If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is
consistent with the verdict and judgment, most favorable to
sustaining the verdict and judgment.’ ” Eastley at ¶ 21; quoting
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461
N.E.2d 1273 (1984), fn.3; quoting 5 Ohio Jurisprudence 3d,
Appellate Review, Section 60, at 191-192 (1978).
Thus, an appellate court will leave the issues of weight and credibility of the
evidence to the fact finder, as long as a rational basis exists in the record for
its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-
Ohio-1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No. 07CA2948,
2007-Ohio-6331, ¶ 6 (“We will not intercede as long as the trier of fact has
Hocking App. No. 17CA6 9
some factual and rational basis for its determination of credibility and
weight.”).
{¶11} Once the reviewing court finishes its examination, the court
may reverse the judgment of conviction only if it appears that the fact-finder,
when resolving the conflicts in evidence, “ ‘clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.’ ” Wickersham, supra, at ¶ 26; quoting State v.
Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541; quoting State v.
Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A
reviewing court should find a conviction against the manifest weight of the
evidence only in the “ ‘exceptional case in which the evidence weighs
heavily against the conviction.’ ” Id.; quoting Martin at 175; State v.
Lindsey, 87 Ohio St. 3d 479, 483, 721 N.E.2d 995 (2000).
{¶12} Appellant was convicted of a violation of R.C. 2925.11(A).
R.C. 2925.11 governs drug possession offenses and provides, in pertinent
part, as follows: “(A) No person shall knowingly obtain, possess, or use a
controlled substance or a controlled substance analog.” Appellant was also
convicted of a violation of R.C. 2925.041, illegal assembly or possession of
chemicals for manufacture of drugs, which provides:
“(A) No person shall knowingly assemble or possess one or
more chemicals that may be used to manufacture a controlled
Hocking App. No. 17CA6 10
substance in schedule I or II with the intent to manufacture a
controlled substance in schedule I or II in violation of section
2925.04 of the Revised Code.”
Furthermore, R.C. 2925.041(B) provides:
“In a prosecution under this section, it is not necessary to allege
or prove that the offender assembled or possessed all chemicals
necessary to manufacture a controlled substance in schedule I
or II. The assembly or possession of a single chemical that may
be used in the manufacture of a controlled substance in
schedule I or II, with the intent to manufacture a controlled
substance in either schedule, is sufficient to violate this
section.”
{¶13} The evidence against Appellant is circumstantial and we begin
by recognizing that it is well-established that “a defendant may be convicted
solely on the basis of circumstantial evidence.” Wickersham, supra, at ¶ 39;
quoting State v. Nicely, 39 Ohio St. 3d 147, 151, 529 N.E.2d 1236 (1988).
“Circumstantial evidence and direct evidence inherently possess the same
probative value.” State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492,
paragraph one of the syllabus (1991). “Circumstantial evidence is defined as
‘[t]estimony not based on actual personal knowledge or observation of the
facts in controversy, but of other facts from which deductions are drawn,
showing indirectly the facts sought to be proved. * * *’ ” Nicely, 39 Ohio
St.3d at 150, 529 N.E.2d 1236; quoting Black's Law Dictionary (5 Ed. 1979)
221.
Hocking App. No. 17CA6 11
{¶14} As this Court recently observed in State v. Colley, 2017-Ohio-
4080, 92 N.E.3d 1 (4th Dist.):
“ ‘Under the clear requirements of R.C. 2925.041(A), the mere
assembly or possession of chemicals that could be used to
produce a controlled substance is not sufficient to prove the
performance of the criminal act. State v. Cumberledge, 11th
Dist. [Lake] No. 2010-L-142, 2012-Ohio-3012 []. In addition to
possessing the chemical, the state must further demonstrate a
present intent on the part of the defendant to actually use the
chemical in the future to produce the illegal drug. Id.
***
In most instances, proof of this intent will likely be based upon
the defendant's completion of a subsequent act, such as an
initial step in the manufacturing process.’ ” Colley at ¶ 62;
quoting State v. Seldon, 8th Dist. Cuyahoga No. 98429, 2013-
Ohio-819.
And, as emphasized by the Seldon court at ¶ 24:
“In cases throughout Ohio where convictions for Assembly or
Possession of Chemicals used to Manufacture Controlled
Substance were upheld, the state produced evidence from which
a jury could conclude beyond a reasonable doubt that the
requisite intent to manufacture existed. Such evidence included
the following: That the defendant knew how to manufacture
methamphetamine, State v. Stevenson, 5th Dist. [Perry] No.
09CA16, 2010-Ohio-2060; that the defendant made admissions
that he intended to manufacture and/or had participated in the
manufacture of methamphetamine, State v. Smith, 4th Dist.
[Highland] No. 09CA29, 2010-Ohio-4507; that the defendant's
prior acts or statements of accomplices and/or other witnesses,
demonstrated the defendant's knowing participation in the
manufacture of methamphetamine, Cumberledge, supra; the
defendant, in addition to chemicals, possessed the actual
physical equipment needed to manufacture methamphetamine,
such as beakers, filters, tubing, electrical tape, copper fittings, a
heat source, etc., State v. Throckmorton, 4th Dist. [Highland]
No. 08CA17, 2009-Ohio-5344, reversed on other grounds; the
Hocking App. No. 17CA6 12
defendant possessed or had known access to a
methamphetamine lab, or had injuries consistent with work in a
methamphetamine lab, State v. Downing, 12th Dist. No.
CA2009–09–036, [2010-Ohio-5957]; the defendant possessed
quantities of the drug, or known drug delivery devices, i.e.,
syringes, contemporaneous with his possession of the
chemicals, Throckmorton, supra.”
{¶15} Further, Seldon held at ¶ 25 as follows:
“This court is not requiring all of the above, we are just
referencing the many methods the state may use to prove an
intent on the part of the accused to manufacture
methamphetamine, none of which were utilized by the state.
The state's entire case is based on Seldon's possession of some
legally possessed items. It has set forth no evidence that Seldon
completed a subsequent act beyond mere possession, no
evidence of Seldon's prior production of the controlled
substance and no evidence that Seldon knew how to
manufacture the drug. See Cumberledge, Stevenson. In fact,
Seldon testified that he did not know how to manufacture
methamphetamine.”
{¶16} Here, however, the State presented the jury with the following
evidence: 1) testimony indicating law enforcement received a call from the
Kroger pharmacy alerting them that Michael Heller, who was being
watched, had just made a purchase of pseudoephedrine; 2) NPLEx reports
indicating both Appellant and her co-defendant, Heller, routinely purchased
pseudoephedrine (the admission of which we have determined was not plain
error under Appellant’s second assignment of error); 3) testimony indicating
a search of Appellant’s vehicle conducted immediately after leaving Kroger
resulted in the discovery of an unopened box of pseudoephedrine and an
Hocking App. No. 17CA6 13
unopened package of lithium batteries in Appellant’s vehicle; 3) testimony
that a receipt found with the batteries indicated the batteries had been
purchased that day at Kroger; 4) testimony and lab reports indicating an
aluminum can located right behind the driver’s seat where Appellant was
sitting contained methamphetamine residue; and 5) testimony from
Appellant’s co-defendant, Heller, stating that he went to the pharmacy, at
Appellant’ request, to buy pseudoephedrine in order for Appellant to use to
make methamphetamine; 6) testimony from Heller that Appellant made a
separate purchase of lithium batteries at the time he was purchasing the
pseudoephedrine; 7) testimony from Heller that he had purchased
pseudoephedrine for Appellant on previous occasions and was provided with
methamphetamine in exchange for doing so; and 8) testimony from Heller
that on the day they were arrested, he had bought pseudoephedrine for
Appellant and was supposed to get methamphetamine from her. Based on
our review of the trial transcript, we find there was circumstantial evidence
in this case supporting the conclusion that Appellant intended to
manufacture methamphetamine.
{¶17} Further, regarding circumstantial evidence of intent, it has been
stated that “[i]ntent lies within the privacy of an individual's own thoughts
and is not susceptible of objective proof.” Wickersham, supra, at ¶ 30;
Hocking App. No. 17CA6 14
quoting State v. Garner, 74 Ohio St. 3d 49, 60, 656 N.E.2d 623 (1995). So
“intent ‘can never be proved by the direct testimony of a third person.’ ”
State v. Moon, 4th Dist. Adams App. No. 08CA875, 2009-Ohio-4830, ¶ 20;
quoting State v. Lott, 51 Ohio St. 3d 160, 168, 555 N.E.2d 293 (1990).
Rather it “ ‘must * * * be inferred from the act itself and the surrounding
circumstances, including the acts and statements of the defendant
surrounding the time of the offense.’ ” Id.; quoting State v. Wilson, 12th
Dist. Warren No. CA2006-01-007, 2007-Ohio-2298, ¶ 41. But “persons are
presumed to have intended the natural, reasonable and probable
consequences of their voluntary acts.” Garner at ¶ 60.
{¶18} It is reasonable to infer, from the evidence admitted at trial, that
Appellant knew and understood that both pseudoephedrine and lithium were
key ingredients used to manufacture methamphetamine. Further, it is logical
to infer that Heller was assisting Appellant in assembling the ingredients
needed to manufacture methamphetamine, that Appellant would have done
so had they not been arrested. “A person acts knowingly, regardless of his
purpose, when he is aware that his conduct will probably cause a certain
result or will probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances probably exist.”
State v. Evans–Goode, 4th Dist. Meigs No. 15CA10, 2016-Ohio-5361, ¶ 8;
Hocking App. No. 17CA6 15
R.C. 2901.22(B). “[W]hether a person acts knowingly can only be
determined, absent a defendant's admission, from all the surrounding facts
and circumstances * * *.” Garner at 60; quoting State v. Huff, 145 Ohio
App.3d 555, 563, 763 N.E.2d 695 (1st Dist.2001).
{¶19} Further, the fact that an aluminum can in Appellant’s vehicle,
that was located directly behind her seat, tested positive for
methamphetamine residue further supports this inference. Additionally, the
testimony of Heller was sufficient to demonstrate that once the chemicals
were purchased, Appellant possessed them, intended to use them to
manufacture methamphetamine, and would provide Heller with some of the
finished product in exchange for his role of purchasing the pseudoephedrine,
consistent with the arrangement they had had in the past. “ ‘[P]ossession’ is
defined as ‘having control over a thing or substance, but may not be inferred
solely from mere access to the thing or substance through ownership or
occupation of the premises upon which the thing or substance is found.’ ”
Wickersham, supra, at ¶ 10; quoting State v. Gavin, 4th Dist. Scioto No.
13CA3592, 2015-Ohio-2996, ¶ 35; citing R.C. 2925.01(K). “Possession
may be actual or constructive.” Gavin; quoting State v. Moon, 4th Dist.
Adams No. 08CA875, 2009-Ohio-4830, ¶ 19; citing State v. Butler, 42 Ohio
Hocking App. No. 17CA6 16
St.3d 174, 175, 538 N.E.2d 98 (1989) (“[t]o constitute possession, it is
sufficient that the defendant has constructive possession”).
{¶20} “ ‘Actual possession exists when the circumstances indicate
that an individual has or had an item within his immediate physical
possession.’ ” Wickersham, supra, at ¶ 11; quoting Gavin at ¶ 36; State v.
Kingsland, 177 Ohio App. 3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶ 13
(4th Dist.); quoting State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-
5747, ¶ 39. “Constructive possession exists when an individual knowingly
exercises dominion and control over an object, even though that object may
not be within his immediate physical possession.” Gavin, supra; quoting
State v. Hankerson, 70 Ohio St. 2d 87, 434 N.E.2d 1362, syllabus (1982);
State v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 19. For
constructive possession to exist, the State must show that the defendant was
conscious of the object's presence. Gavin, supra; Hankerson at 91;
Kingsland at ¶ 13. Both dominion and control, and whether a person was
conscious of the object's presence, may be established through
circumstantial evidence. Gavin, supra; Brown at ¶ 19. “Moreover, two or
more persons may have joint constructive possession of the same object.” Id.
Here, based on the evidence, it is a logical inference that Appellant had
constructive and actual possession and control over her own vehicle, as well
Hocking App. No. 17CA6 17
as the pseudoephedrine, lithium batteries, and aluminum can with
methamphetamine residue contained within.
{¶21} Appellant’s convictions are entirely based upon circumstantial
evidence. Her intent was also proven by circumstantial evidence. As set
forth above, both are permissible. Appellant and her co-defendant were
shown to have a history of purchasing pseudoephedrine, at times even being
blocked from purchasing due to exceeding the legal limit. Appellant’s
vehicle and the contents thereof were within her custody and control at the
time of the traffic stop and her arrest. Further, extensive testimony of
Appellant’s co-defendant demonstrated that Appellant had, in the past, and
intended in the future, to provide him with methamphetamine in exchange
for him purchasing pseudoephedrine and providing it to her. The jury heard
the testimony, considered the evidence presented at trial, and was in the best
position to observe the witnesses and evaluate their credibility. Having
reviewed the entire record before us, we do not find this to be one of those
exceptional cases where the evidence weighs heavily against conviction.
Instead, we conclude the evidence supports the findings that Appellant
possessed methamphetamine and engaged in the possession or assembly of
chemicals (pseudoephedrine and lithium) with an intent to manufacture
methamphetamine. Therefore, her convictions are not against the manifest
Hocking App. No. 17CA6 18
weight of the evidence. Accordingly, Appellant’s first assignment of error is
overruled.
ASSIGNMENT OF ERROR II
{¶22} In her second assignment of error, Appellant contends that the
trial court committed plain error in admitting NPLEx records into evidence
without requiring a proper foundation to be laid establishing an exception to
the prohibition against hearsay. In arguing plain error, Appellant concedes
she did not object to the admission of the NPLEx records. The State
contends the admission of the records did not constitute plain error, and that
even if plain error did occur, such error was harmless beyond a reasonable
doubt in light of the other evidence introduced at trial.
{¶23} We initially note that the admission or exclusion of evidence is
within the sound discretion of the trial court, and the trial court's decision to
admit or exclude such evidence cannot be reversed absent an abuse of
discretion. State v. Craft, 4th Dist. Athens No. 97CA53, 1998 WL 255442,
*7 (Internal citations omitted.). The term “abuse of discretion” connotes
more than an error of judgment; it implies that the court's attitude is
unreasonable, arbitrary, or unconscionable. Id.; citing State v. Xie, 62 Ohio
St.3d 521, 584 N.E.2d 715 (1992); State v. Montgomery, 61 Ohio St. 3d 410,
575 N.E.2d 167 (1991) (reversed on other grounds). When applying the
Hocking App. No. 17CA6 19
abuse of discretion standard of review, we are not free to merely substitute
our judgment for that of the trial court. Craft at *7; citing In re Jane Doe 1,
57 Ohio St. 3d 135, 137–138, 566 N.E.2d 1181 (1991); citing Berk v.
Matthews, 53 Ohio St. 3d 161, 169, 559 N.E.2d 1301 (1990). We also note,
however, that because Appellant did not object to the admission of the
NPLEx records at trial, she has waived all but plain error.
{¶24} Failure to object to an alleged error waives all but plain error.
State v. Keeley, 4th Dist. Washington No. 11CA5, 2012–Ohio–3564, ¶ 28.
Notice of Crim.R. 52(B) plain error must be taken with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage
of justice. State v. Rohrbaugh, 126 Ohio St. 3d 421, 2010–Ohio–3286, 934
N.E.2d 920, ¶ 6; State v. Long, 53 Ohio St. 2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus. To find plain error, the outcome of trial
must clearly have been otherwise. State v. McCausland, 124 Ohio St. 3d 8,
2009–Ohio–5933, 918 N.E.2d 507, ¶ 15; State v. Braden, 98 Ohio St. 3d 354,
2003–Ohio–1325, 785 N.E.2d 439, ¶ 50.
{¶25} Further, and importantly, not only did Appellant fail to object to
the admission of the NPLEx reports, she appears to have relied upon the
contents of the reports as part of her trial strategy. For instance, defense
counsel conducted extensive cross examination of Detective Robinson
Hocking App. No. 17CA6 20
regarding the contents of the NPLEx report detailing Appellant’s
pseudoephedrine purchases. Her strategy was clearly to demonstrate that
Appellant’s purchase history could be construed as someone buying
pseudoephedrine consistent with legitimate use, as directed, for the treatment
of allergies. Further, as early as opening argument, Appellant’s counsel
described to the jury the idea of a fishing net that is cast so far that dolphins
unintentionally get caught up in the net. Counsel stated that her client “is the
dolphin caught up in the net. She is not the intended target of the
investigation. She just happened to be with the tuna.” Counsel then told the
jury to watch for the net during trial.
{¶26} Later, during closing arguments, counsel drew an analogy
between the overbroad fishing nets and the NPLEx system, stating to the
jury as follows:
“So the two things that I talked about at my opening statement
was the NPLEx and I wanted you [sic] see the net. I wanted
you to see how a perfectly innocent person can get caught up in
it and actually attempt to purchase beyond their knowledge – or
beyond their limit and that an average person is really not going
to know where they are on their limit. So I wanted you to
understand that.”
Clearly defense counsel wanted the jury to consider and analyze the contents
of the NPLEx reports at issue, as part of her trial strategy, to demonstrate the
theory that Appellant was purchasing pseudoephedrine in reasonable
Hocking App. No. 17CA6 21
quantities for a legitimate and legal use. To this extent, we conclude any
error in the admission of the NPLEx reports was invited error.
{¶27} Under the invited error doctrine, “a party is not entitled to take
advantage of an error that he himself invited or induced.” State v. Doss, 8th
Dist. Cuyahoga No. 84433, 2005-Ohio-775, ¶ 5; quoting State ex rel. Kline
v. Carroll, 96 Ohio St. 3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 27; State
ex rel. The V. Cos. v. Marshall, 81 Ohio St. 3d 467, 471, 692 N.E.2d 198
(1998). The doctrine precludes a defendant from making “an affirmative
and apparent strategic decision at trial” and then complaining on appeal that
the result of that decision constitutes reversible error. Doss at ¶ 7; quoting
United States v. Jernigan, 341 F.3d 1273, 1290 (11th Cir.2003). The
doctrine applies when defense counsel is “actively responsible” for the trial
court's error. State v. Campbell, 90 Ohio St. 3d 320, 324, 738 N.E.2d 1178
(2000). Therefore, Appellant’s second assignment of error is overruled.
{¶28} Accordingly, having no merit in either of the assignments of
error set forth by Appellant, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Hocking App. No. 17CA6 22
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Hocking 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 BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: _____________________________
Matthew W. McFarland, 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.