State v. Jones , 2016 Ohio 7277 ( 2016 )

[Cite as State v. Jones, 2016-Ohio-7277.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27732
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MICHAEL A. JONES COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2014 10 3070
DECISION AND JOURNAL ENTRY
Dated: October 12, 2016
CARR, Presiding Judge.
{¶1} Defendant-Appellant, Michael Jones, appeals from his convictions in the Summit
County Court of Common Pleas. This Court affirms.
I.
{¶2} Following a tip he received from an informant, Detective Paul Laurella asked
another detective to help him conduct nighttime surveillance at a house on First Street in
Barberton. The informant stated that Richard Keith, the resident of the house, and another
unknown man would be manufacturing methamphetamine there sometime that evening.
Accordingly, the two detectives waited outside the house and watched for any suspicious
behavior. After several hours, Detective Laurella observed someone inside the house turn on a
window fan and, soon afterward, smelled a distinct order, which he associated with
methamphetamine production. He and his fellow detective then called for assistance and entered
the house with the help of other officers.
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{¶3} Inside the house, the police discovered numerous ingredients associated with
methamphetamine production as well as a two-liter bottle. The two liter bottle contained an
active chemical mixture that Detective Laurella recognized as the reactionary phase of the
methamphetamine production process. The police searched the remainder of the house and
found Jones in one of the home’s bedrooms, lying beside his sleeping fifteen-year-old cousin.
The police ultimately arrested both Keith and Jones, and Detective Laurella later interviewed
Jones at the police station. During his interview, Jones admitted that both he and Keith had been
manufacturing methamphetamine, with each man fulfilling a separate role in the manufacturing
process.
{¶4} A grand jury indicted Jones on each of the following counts: (1) illegal assembly
or possession of chemicals for the manufacture of methamphetamine in the vicinity of a juvenile;
(2) illegal manufacture of methamphetamine in the vicinity of a juvenile; and (3) endangering
children. Following his trial, a jury found Jones guilty on all three counts. The court sentenced
Jones to seven years in prison on his illegal assembly count, seven years in prison on his illegal
manufacturing count, and three years in prison on his endangering count. The court ordered all
of his prison terms to run concurrently for a total sentence of seven years in prison.
{¶5} Jones now appeals from the trial court’s judgment and raises two assignments of
error for our review.
II.
ASSIGNMENT OF ERROR I
APPELLANT’S CONVICTION WAS BASED UPON INSUFFICIENT
EVIDENCE TO SUSTAIN A CONVICTION. THE TRIAL COURT ERRED
BY DENYING APPELLANT’S CRIM.R. 29 MOTION.
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{¶6} In his first assignment of error, Jones argues that his convictions are based on
insufficient evidence, and that the trial court erred when it denied his Crim.R. 29 motion for
acquittal. We disagree with both propositions.
{¶7} Crim.R. 29(A) provides, in relevant part:
The court on motion of a defendant or on its own motion, after the evidence on
either side is closed, shall order the entry of a judgment of acquittal of one or
more offenses charged in the indictment * * * if the evidence is insufficient to
sustain a conviction of such offense or offenses. The court may not reserve ruling
on a motion for judgment of acquittal made at the close of the state’s case.
When reviewing the sufficiency of the evidence, this Court must review the evidence in a light
most favorable to the prosecution to determine whether the evidence before the trial court was
sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).
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.
{¶8} “Methamphetamine is a schedule II controlled substance.” State v. Gregory, 9th
Dist. Summit No. 27523, 2015-Ohio-4901, ¶ 18. The Revised Code prohibits any person from
“knowingly assembl[ing] or possess[ing] one or more chemicals that may be used to
manufacture a controlled substance in schedule I or II with the intent to manufacture a controlled
substance in schedule I or II * * *.” R.C. 2925.041(A). Likewise, it prohibits any person from
“knowingly manufactur[ing] or otherwise engag[ing] in any part of the production of a
controlled substance.” R.C. 2925.04(A). If an individual commits either of the foregoing acts on
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the same parcel of real property on which a child is present, the individual is also guilty of child
endangering. R.C. 2919.22(B)(6), (E)(1).
{¶9} Detective Laurella testified that, on September 29, 2014, he decided to conduct
surveillance at a house on First Street because he received a tip from an informant. The
informant had told him that Richard Keith, the resident of the house, and “an unknown guy”
would be manufacturing methamphetamine that evening. Detective Laurella asked another
detective, Detective Antenucci, to accompany him and testified that they arrived at the house at
about 9:30 p.m.
{¶10} While Detective Laurella was still inside his car looking for a place to conduct his
surveillance, he saw two people walking down First Street. He testified that he recognized one
of the individuals as being involved with methamphetamine production and that, as he watched,
the two individuals walked around the back of the house that he intended to surveil. Detective
Laurella testified that he decided to have Detective Antenucci watch the front of the house while
he watched the back. He ultimately chose to conduct his surveillance from an alley that was
approximately 40 to 50 feet away from the house.
{¶11} Detective Laurella testified that he watched the house for several hours and,
during that time, received another tip that Keith and his associate “were definitely going to start
[manufacturing methamphetamine] sometime tonight.” As he watched the house, he saw
someone inside turn on a small double window fan. Detective Laurella stated that the activation
of the fan was significant to him because, in his experience, people commonly use fans to vent
chemicals when they are producing methamphetamine. Consistent with his experience,
Detective Laurella soon noticed a strong chemical smell that he recognized as “the odor that’s
produced when you manufacture methamphetamine.”
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{¶12} Because they believed someone was in the process of manufacturing
methamphetamine inside the home, Detective Laurella and Detective Antenucci requested back
up. Other officers soon arrived, and the police knocked on the door of the house. Keith
answered the door, and Detectives Laurella and Antenucci went inside. Detective Laurella stated
that the chemical smell that he recognized outside was even stronger in the house. He and his
fellow officers located several individuals in the house, including Jones. Detective Laurella
testified that Jones was lying in the same bed as his sleeping cousin, but was fully clothed,
appeared very nervous, and “was sweating profusely.” Approximately 20 to 30 feet away from
the bedroom where the police found Jones, Detective Laurella testified that they found an active
meth lab.
{¶13} Detective Laurella testified that, inside the house, the police found numerous
items that are used in the production of methamphetamine. Specifically, they found bottles of
acetone, lye, and drain opener together in a trash receptacle, a Pyrex dish containing ice water,
plastic tubing, a coffee maker with no coffee pot, Zippo lighter fluid, a bottle of unknown acid
that was thought to be muriatic acid, Nitrile gloves, pseudoephedrine pills, lithium batteries, foil,
and aluminum nitrate cold packs. The police also found a two-liter bottle that Detective Laurella
identified as a reactionary vessel for the reactionary phase of methamphetamine production. He
testified that the bottle was emitting a hissing sound when he came close to it and had a very
strong chemical smell. Although Detective Laurella initially thought that someone had left the
bottle’s cap loosened for ventilation purposes, he saw that the structure of the bottle had actually
failed and that the bottle was leaking fuel and ammonia gas. He testified that he quickly put on
his fireproof gear and took the bottle outside.
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{¶14} Detective Laurella testified that Jones was taken into custody in connection with
the active methamphetamine lab that the police discovered. On October 1, 2014, he interviewed
Jones at the police station. During the interview, Jones admitted that he brought
pseudoephedrine pills with him to the house on First Street and that he and Keith were in the
process of producing methamphetamine when the police arrived. Specifically, he stated that
Keith had heated the fuel for him while he soaked the pseudoephedrine pills in acetone, cut
batteries to access their lithium centers, and added the content of the cold packs to the mixture.
Detective Laurella testified that Jones’ mention of using acetone to help breakdown the
pseudoephedrine pills solidified his belief that Jones was involved in the production process
because that was “even more than some meth cooks * * * know to do.”
{¶15} As part of his investigation, Detective Laurella testified that he also searched
NPLEx. He explained that NPLEx is a database that law enforcement and pharmacies use to
track the sales of pseudoephedrine. He testified that the database showed that Jones had
purchased: (1) 1.44 grams of pseudoephedrine from a pharmacy in Akron on September 23,
2014; and (2) 2.4 grams of pseudoephedrine from a pharmacy in Fairlawn on September 28,
2014. He stated that individuals who purchase pseudoephedrine pills for methamphetamine
production purposes often buy the pills at different pharmacies to try to avoid detection. He
noted that Jones made his second purchase the day before he was arrested in connection with the
active methamphetamine lab.
{¶16} Jones argues that his convictions are based on insufficient evidence because there
was no evidence that he was involved in the production of methamphetamine on the evening of
his arrest. He notes that the police found him in a bedroom, alongside his sleeping cousin and
that no methamphetamine production materials were found in that bedroom. He argues that his
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mere presence in the house where methamphetamine was being produced was insufficient
evidence to show that he knowingly manufactured the drug or knowingly possessed any of the
chemicals necessary to manufacture the drug.
{¶17} Viewing the State’s evidence in a light most favorable to the prosecution, a
rational trier of fact could have concluded that the State set forth sufficient evidence that Jones
knowingly possessed illegal chemicals and knowingly manufactured methamphetamine on the
night in question. See Jenks, 61 Ohio St.3d 259 at paragraph two of the syllabus. The State’s
evidence was not limited to establishing Jones’ presence in the house on First Street. The State
set forth evidence that he purchased pseudoephedrine pills on two separate occasions in the days
before his arrest. It also introduced Jones’ interview with Detective Laurella, during which he
admitted that he was involved in the manufacturing process. Jones admitted that he purchased
pseudoephedrine pills and used acetone to break down the pills while Keith heated fuel for him.
He further admitted that he cut apart batteries and added cold packs to the chemical mixture.
There was evidence that the house on First Street had a very strong chemical smell when police
arrived and that, when Detective Laurella found Jones, he was fully clothed, very nervous, and
“sweating profusely.” Given all of the evidence the State introduced, the jury reasonably could
have concluded that the State proved its case against Jones beyond a reasonable doubt.
Consequently, Jones’ convictions are not based on insufficient evidence, and his first assignment
of error is overruled.
ASSIGNMENT OF ERROR II
THE JURY VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶18} In his second assignment of error, Jones argues that his convictions are against the
manifest weight of the evidence. We disagree.
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{¶19} A conviction that is supported by sufficient evidence may still be found to be
against the manifest weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must 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, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the evidence, the
appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the
conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An
appellate court should exercise the power to reverse a judgment as against the manifest weight of
the evidence only in exceptional cases. Otten at 340.
{¶20} At trial, Richard Keith testified for the defense. Keith testified that Jones was his
nephew by marriage and that, on the night in question, Jones had come to his house to shower
and rest. According to Keith, Jones was asleep at the time that he began manufacturing
methamphetamine. Keith confirmed that he pleaded guilty to reduced charges after he was
indicted in connection with this incident. He insisted that Jones was not involved in the
manufacturing process. Nevertheless, Keith admitted that he made several recorded phone calls
while being held at the jail on his charges. He admitted that, in those phone calls, he disclaimed
responsibility for the two-liter bottle that the police found at his house and stated that it was
Jones who had possession of the bottle. According to Keith, he lied during the phone calls
because his case had not yet been resolved and he was unwilling to take responsibility for his
actions before that occurred.
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{¶21} Jones argues that his convictions are against the manifest weight of the evidence
because Keith’s testimony established that Keith was responsible for manufacturing the
methamphetamine that the police found at his house. According to Jones, the jury lost its way
when it convicted him because the evidence established that he was not in possession of any
methamphetamine-related items when the police found him and that he had merely come to
Keith’s house to sleep.
{¶22} Having reviewed the record, we cannot conclude that the jury lost its way when it
convicted Jones. Although Keith testified that Jones did not help him produce methamphetamine
on the evening in question, he admitted that he had previously made statements implicating
Jones. Moreover, the State produced the recording of Jones’ interview with Detective Laurella,
during which Jones admitted that he purchased pseudoephedrine pills and helped Keith
manufacture methamphetamine that evening. Detective Laurella testified that Jones possessed
very specific knowledge about the manufacturing process, as he was able to tell the detective that
acetone could be used to help break down pseudoephedrine pills. The detective also testified that
Jones did not appear to have been sleeping when the police arrived because he was fully clothed,
nervous, and “sweating profusely.” The jury here “was in the best position to evaluate the
credibility of the witnesses, and this Court will not overturn the trial court’s verdict on a manifest
weight of the evidence challenge simply because the jury chose to believe certain witnesses’
testimony.” State v. Velez, 9th Dist. Lorain No. 14CA010683, 2016-Ohio-2875, ¶ 11. Upon
review, this is not the exceptional case where the jury clearly lost its way. See Otten, 33 Ohio
App.3d at 340. Jones’ argument that his convictions are against the manifest weight of the
evidence lacks merit. As such, his second assignment of error is overruled.
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III.
{¶23} Jones’ assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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(C). 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.
DONNA J. CARR
FOR THE COURT
MOORE, J.
SCHAFER, J.
CONCUR.
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APPEARANCES:
ALAN M. MEDVICK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.