State v. Angus , 2017 Ohio 1100 ( 2017 )

[Cite as State v. Angus, 2017-Ohio-1100.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
: Case No. 15CA3507
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
SABRINA ANGUS, :
:
Defendant-Appellant. : Released: 03/21/17
_____________________________________________________________
APPEARANCES:
Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski,
Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C.
Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for
Appellee.
_____________________________________________________________
McFarland, J.
{¶1} This is an appeal from a Ross County Court of Common Pleas
judgment entry sentencing Appellant, Sabrina Angus, after a jury found her
guilty of illegal manufacture of drugs, a first degree felony in violation of
R.C. 2925.04(A); illegal assembly or possession of chemicals for the
manufacture of drugs, a second degree felony in violation of R.C.
2925.041(A); and aggravated possession of drugs, a second degree felony in
violation of R.C. 2925.11. On appeal, Appellant contends that 1) her right to
Ross App. No. 15CA3507 2
a fair trial was violated when her refusal to consent to a search of her home
was introduced into evidence against her at trial; and 2) the trial court erred
when it failed to merge her conviction for manufacturing methamphetamine
with her conviction for possessing chemicals in order to manufacture
methamphetamine.
{¶2} Because we conclude Appellant’s convictions were supported by
overwhelming evidence, we cannot conclude Appellant was prejudiced by
the admission of testimony indicating she refused to consent to a search of
her residence. We further conclude that any arguable error that occurred as
a result of the admission of the refusal was harmless beyond a reasonable
doubt. Thus, Appellant’s first assignment of error is overruled. Likewise,
because we have concluded that the offenses at issue were committed with
separate conduct and a separate animus, they are not allied offenses of
similar import. As such, we cannot conclude that the trial court erred in
failing to merge counts one and two for purposes of sentencing. Thus,
Appellant’s second assignment of error is overruled. Accordingly, the
judgment of the trial court is affirmed.
FACTS
{¶3} Appellant was indicted for illegal manufacture of drugs, a first
degree felony in violation of R.C. 2925.04(A); illegal assembly or
Ross App. No. 15CA3507 3
possession of chemicals for the manufacture of drugs, a second degree
felony in violation of R.C. 2925.041(A); and aggravated possession of
drugs, a second degree felony in violation of R.C. 2925.11, on December 12,
2014. The indictment stemmed from an incident occurring on July 11, 2014,
in which law enforcement conducted a search of her residence after her ex-
husband, Stuart Angus, reported that he believed she was manufacturing
methamphetamine. Appellant pleaded not guilty to the charges and the
matter proceeded to a jury trial on September 15-17, 2014.
{¶4} The evidence and testimony introduced at trial will be discussed
in further detail below. In summary, the State introduced evidence in the
form of a video recording made by Stuart Angus on July 10, 2014, indicating
that multiple precursor items or ingredients used in the manufacture of
methamphetamine, as well as various items of drug paraphernalia, were
present in Appellant’s bedroom on that date. The State also introduced
testimony by multiple law enforcement personnel involved in the search of
Appellant’s residence that indicated Appellant admitted to investigating
officers that methamphetamine was being manufactured in her house. The
State’s first witness, Deputy McKeever, testified that after Appellant
admitted methamphetamine was being manufactured in her house, she
refused to consent to a search and, as a result, a search warrant was obtained.
Ross App. No. 15CA3507 4
Defense counsel objected to the statement regarding the refusal to consent to
the search, and also moved for a mistrial. The trial court denied the motion.
{¶5} The State also introduced testimony regarding the items found
during the course of the search, which included a mason jar with a liquid and
powdery white substance in it, multiple water bottles, straws, rubber tubing,
gloves, a hair dryer, a hydrochloric acid generator, coffee filters (new and
used), burned foil, batteries, starting fluid and four, active one pot
methamphetamine labs. The State further introduced evidence from a
forensic scientist employed by the Ohio Bureau of Criminal Investigation
stating that testing performed on the one pots recovered from Appellant’s
house resulted in a finding of forty-five grams of methamphetamine, which
is fifteen times the bulk amount.
{¶6} Appellant testified in her own defense, as did Appellant’s son
and former boyfriend, Paul Yancey. Appellant testified that she did not
mean to answer yes when asked if methamphetamine was being
manufactured in her house. She testified that she was alarmed and confused
when law enforcement arrived at her house, and initially thought they were
there to tell her that something had happened to two of her children, who
Ross App. No. 15CA3507 5
were not present at the time.1 She further testified she had stayed at
Yancey’s house the night prior to the search and had worked all day long the
following day. She stated she always leaves her door unlocked when she is
gone. Yancey testified that he was present in the house the day before the
search. He testified that he heard someone in the house while he was in the
basement, and when he went upstairs to see who it was, he saw Stuart
Angus’s vehicle driving away from the house. Appellant’s theory at trial
was essentially that she had no knowledge of methamphetamine being
present or being manufactured in her house and that Stuart Angus set her up
due to his desire to obtain custody of their children.
{¶7} The jury ultimately found Appellant guilty on all counts
contained in the indictment. The trial court merged count one
(manufacturing) with count three (aggravated possession), but declined to
merge count two (illegal assembly/possession) for purposes of sentencing. It
is from this decision that Appellant now brings her timely appeal, setting
forth three assignments of error for our review.
ASSIGNMENTS OF ERROR
“I. MS. ANGUS'S RIGHT TO A FAIR TRIAL WAS VIOLATED
WHEN HER REFUSAL TO CONSENT TO A SEARCH OF HER
1
The record indicates that Appellant has four children. Two had left the residence together and had not
returned at the time law enforcement arrived. The record further indicates that at least one of Appellant’s
children was present at the time law enforcement arrived, her eleven-year-old daughter, who is autistic.
Ross App. No. 15CA3507 6
HOME WAS INTRODUCED INTO EVIDENCE AGAINST HER
AT TRIAL.
II. THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE MS.
ANGUS'S CONVICTION FOR MANUFACTURING
METHAMPHETAMINE WITH HER CONVICTION FOR
POSSESSING CHEMICALS IN ORDER TO MANUFACTURE
METHAMPHETAMINE.”
ASSIGNMENT OF ERROR I
{¶8} In her first assignment of error, Appellant contends that her right
to a fair trial was violated when her refusal to consent to a search of her
home was introduced into evidence against her. The State responds by
arguing that it did not violate Appellant's rights under the Fourth
Amendment, but rather complied with the Fourth Amendment by securing a
search warrant in this case. The State further argues that even if a violation
of the Fourth Amendment occurred, this Court should apply a harmless error
standard as the mention of Appellant's refusal to consent to a search of her
home was inadvertent, the State did not argue or comment that the failure to
consent to the search should be used against Appellant, and overwhelming
evidence of Appellant’s guilt was introduced at trial. We employ a de novo
standard of review when evaluating errors based upon violations of
constitutional law. State v. Bryant, 4th Dist. Ross No. 14CA3434, 2014-
Ohio-5535, ¶ 12; citing State v. Burgette, 4th Dist. Athens No. 13CA50,
2014-Ohio-3483, ¶ 10.
Ross App. No. 15CA3507 7
{¶9} “ ‘The Fourth Amendment to the United States Constitution and
the Ohio Constitution, Article I, Section 14, prohibit unreasonable searches
and seizures.’ ” State v. Taylor, 4th Dist. Lawrence No. 15CA12, 2016-
Ohio- 2781, ¶ 31; quoting State v. Emerson, 134 Ohio St. 3d 191, 2012-
Ohio-5047, 981 N.E.2d 787, ¶ 15. These constitutional provisions contain
nearly identical language and have been interpreted to provide the same
protection. Taylor at ¶ 31; citing State v. Hoffman, 141 Ohio St. 3d 428,
2014-Ohio-4795, 25 N.E.3d 993 N.E.3d 993, ¶ 11.
{¶10} “The Fourth Amendment protects against two types of
unreasonable intrusions: 1) searches, which occur when an expectation of
privacy that society is prepared to consider reasonable is infringed upon; and
2) seizures, which occur when there is some meaningful interference with an
individual's liberty or possessory interest in property.” Taylor at ¶ 32; citing
State v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652 (1984).
{¶11} “ ‘[S]earches and seizures conducted outside the judicial
process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment-subject only to a few
specifically established and well-delineated exceptions.’ ” Taylor at ¶ 33;
quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507 (1967). As
explained in Taylor, “ ‘[o]nce the defendant demonstrates that he was
Ross App. No. 15CA3507 8
subjected to a warrantless search or seizure, the burden shifts to the state to
establish that the warrantless search or seizure was constitutionally
permissible.’ ” Taylor at ¶ 33; quoting State v. Johnson, 4th Dist. Scioto No.
14CA3618, 2014-Ohio-5400, ¶ 13; citing State v. Roberts, 110 Ohio St. 3d
71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 98.
{¶12} Appellant contends that her Fourth Amendment rights were
violated when Deputy Andrea McKeever testified upon direct examination
that Appellant refused to consent to a search of her residence on the night in
question. A review of the trial transcript reveals the following testimony
was introduced at trial:
“Ms. Schumaker: Okay, so what did you do upon arrival?
Deputy McKeever: I stood by pretty much as witness while
Detective Lewis spoke with Ms. Angus.
Ms. Schumaker: Alright. And, what, if any, conversation did,
or statement, did you hear the Defendant make at that point?
Deputy McKeever: Detective Lewis asked her if meth was
being made in the house and she replied yes, at which point she
was read her Miranda rights and she refused for us to search to
search [sic] the residence so we had to get a search warrant.”
At this point, defense counsel lodged an objection and then made a motion
for a mistrial.
{¶13} The jury was recessed and a recording of the testimony was
played back. There was some discussion as to whether Appellant asserted
Ross App. No. 15CA3507 9
her Fifth Amendment right to remain silent, or whether she had refused to
consent to a search.2 It was decided that the statement at issue dealt with
refusal to consent to a search of her residence, rather than an assertion of her
right to remain silent. The trial court stated that had the witness commented
upon Appellant’s assertion of her right to remain silent as guaranteed by the
Fifth Amendment, it would have declared a mistrial. However, because the
statement at issue instead involved Appellant’s refusal to consent to a search
of her residence, he denied the motion. Defense counsel expressed his
disagreement with the decision and the trial was resumed. The State made
no further mention, during its case-in-chief or in closing, regarding the
refusal to consent to a search.
{¶14} Appellant contends that the issue presented for review is
whether a defendant's refusal to consent to a search may be used as evidence
at trial, and notes that this particular issue has not been directly addressed by
the Supreme Court of Ohio or the Supreme Court of the United States.
2
“The Fifth Amendment to the United States Constitution, which is applicable to the states through the
Fourteenth Amendment, provides that no person ‘shall be compelled in any criminal case to be a witness
against himself.’ ” State v. Bryant, supra, ¶ 13; quoting State v. Leach, 102 Ohio St. 3d 135, 2004-Ohio-
2147, 807 N.E.2d 335, ¶ 11. “ ‘The Fifth Amendment guarantees a criminal defendant's right against self-
incrimination, which includes the right to silence during police interrogation. * * * Additionally, a
defendant can invoke his rights “at any time prior to or during questioning[.]” ’ ” Id.; quoting State v.
Harper, 4th Dist. Vinton No. 11CA684, 2012-Ohio-4527, ¶ 14; in turn quoting Miranda v. Arizona, 384
U.S. 436, 474, 86 S. Ct. 1602 (1966). Further, as we noted in Bryant at ¶ 14, “ ‘Once a person invokes his
or her Fifth Amendment right to remain silent, the State cannot use the person’s silence [either pre-arrest or
post-arrest circumstances] as substantive evidence of guilt in its case-in-chief.’ ” Citing State v. Bennett,
9th Dist. Loraine No. 12CA010286. 2014-Ohio-160, ¶ 63; citing Wainwright v. Greenfield, 474 U.S. 284,
295, 106 S. Ct. 634.
Ross App. No. 15CA3507 10
However, she urges this Court to apply the reasoning of Doyle v. Ohio, 426
U.S. 610, 96 S. Ct. 2240 (1976), which involved the Fifth Amendment right
against self incrimination, to the present case, which involves the Fourth
Amendment right to be free from unreasonable searches and seizures.
Appellant specifically argues that “the Supreme Court of the United States
has made it clear that [defendants] cannot be penalized for exercising their
right to remain silent. * * * This Court should hold that defendants also
cannot be penalized at trial for exercising their Fourth Amendment right to
refuse to consent to a warrantless search.”
{¶15} In Doyle v. Ohio, the Court held that “the use for impeachment
purposes of petitioner’s silence, at the time of arrest and after they received
Miranda warnings, violated the Due Process Clause of the Fourteenth
Amendment.” In State v. Froe, 4th Dist. Scioto No. 02CA2860, 2003-Ohio-
7334, ¶ 55, this Court observed that “Doyle has been held to mean that
Miranda warnings contained an implied assurance that a defendant would
not suffer any penalty for invoking his right to remain silent.” Citing
Wainwright v. Greenfield, supra, at ¶ 55. We further noted in Froe that
“[t]ypically Doyle violations involve the prosecutor using post-Miranda
silence to impeach a defendant during trial. Froe at ¶ 60. However, in Froe
we reasoned that the Doyle rule could extend to other situations, explaining
Ross App. No. 15CA3507 11
that “a prosecutor can implicitly imply the defendant’s silence is evidence of
guilt through police testimony about the defendant invoking his right to
remain silent or to consult an attorney.” Id. (internal citations omitted).
{¶16} Finally, we observed that the Doyle test was two-fold and
required a determination as to whether the prosecutor’s comment was
“extensive and whether the prosecutor “stressed to the jury an inference of
guilt from the accused’s silence as a basis of conviction[.]” Froe at ¶ 61.
Despite finding that the comment at issue was extensive and rose to the level
of a Doyle violation, applying a plain error standard this Court could not
conclude the outcome of the trial would have been different absent the
statements. Id. at ¶ 62-63. Yet, Appellant did object to the testimony at issue
and thus we are conducting a de novo review as opposed to a plain error
review.
{¶17} Appellant cites several cases in support of her argument urging
us to extend the reasoning of Doyle to comments made regarding a
defendant’s assertion of the right to be free from unreasonable searches and
seizures. She argues that “[d]efendants should not be penalized for
exercising their constitutional rights[,]” citing Griffin v. California, 380 U.S.
609, 614, 85 S. Ct. 1229 (1965) in support. She further contends that there is
a body of precedent, which includes most of the federal circuit courts and a
Ross App. No. 15CA3507 12
multitude of state courts, that “ ‘uniformly hold that the prosecution may not
use evidence of a person’s refusal to consent to a search to prove his or her
guilt through an inference of guilty knowledge or consciousness of guilt.’ ”
Citing People v. Pollard, 307 P.3d 1124, 2013 COA 31M (2013) and State
v. Runyan, 290 F.3d 223, 249 (5th Cir.2002).
{¶18} Despite Appellant’s urging, we are not persuaded that a
comment by the State's witness regarding Appellant's refusal to consent to a
search of her home constitutes a Fourth Amendment violation analogous to
commenting upon a defendant's Fifth Amendment right to remain silent. As
argued by the State, the right protected by the Fourth Amendment, by its
plain language, is the right to remain free from unreasonable searches, not
the right to prevent the State from commenting upon the refusal to consent to
a search of her home. Further, as argued by the State, Appellant's assertion
of her Fourth Amendment right to be free from unreasonable searches and
seizures was respected, as law enforcement stopped their investigation and
obtained a search warrant before proceeding. However, if the State's
comment regarding Appellant's refusal to consent to a search does constitute
a violation of Appellant's rights under the Fourth Amendment and applying
Doyle by analogy, we find any error committed by the trial court to be
harmless beyond a reasonable doubt. See State v. McMillion, 11th Dist.
Ross App. No. 15CA3507 13
Ashtabula No. 2005-A-0016, 2006-Ohio-3229, ¶ 27 (“Alleged Doyle
violations are analyzed under a harmless error standard.”) (internal citations
omitted).
{¶19} A constitutional error is not prejudicial if the error is “harmless
beyond a reasonable doubt.” State v. Love, 4th Dist. Ross No. 05CA2838,
2006-Ohio-1824, ¶ 34; quoting Chapman v. California, 386 U.S. 18, 24, 87
S. Ct. 824 (1967). “[E]rror is harmless beyond a reasonable doubt if the
remaining evidence, standing alone, constitutes overwhelming proof of
defendant's guilt.” State v. Williams, 6 Ohio St. 3d 281, 452 N.E.2d 1323,
paragraph six of the syllabus (1983); State v. Woods, 4th Dist. Ross No.
09CA3090, 2009-Ohio-6169, ¶ 27; see also State v. Conway, 108 Ohio St. 3d
214, 2006-Ohio-791, ¶ 78; State v. Osman, 4th Dist. Athens No. 09CA36,
2011-Ohio-4626, ¶ 88.
{¶20} Appellant herein was convicted of three felony counts: count
one, illegal manufacture of drugs, a first degree felony in violation of R.C.
2925.04(A); count two, illegal assembly or possession of chemicals for the
manufacture of drugs, a second degree felony in violation of R.C.
2925.041(A); and count three, aggravated possession of drugs, a second
degree felony in violation of R.C. 2925.11. R.C. 2925.04(A), illegal
manufacture of drugs, provides that “[n]o person shall knowingly cultivate
Ross App. No. 15CA3507 14
marihuana or knowingly manufacture or otherwise engage in any part of the
production of a controlled substance.” R.C. 2925.041(A), illegal assembly
or possession of chemicals for the manufacture of drugs, provides that “[n]o
person shall knowingly assemble or possess 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 in violation
of section 2925.04 of the Revised Code.” R.C. 2925.11, aggravated
possession of drugs, provides that “[n]o person shall knowingly obtain,
possess, or use a controlled substance or a controlled substance analog.”3
{¶21} The State introduced several witnesses at trial. Deputy Andrea
McKeever testified that she initially came to the station to take Stuart
Angus’s complaint, viewed the video he brought with him, and then called
Detectives Davis and Lewis. She further testified that she accompanied
Davis and Lewis to Appellant’s residence and stood by as a witness. She
testified that while acting as a witness she heard Detective Lewis ask
Appellant if meth was being made in her home, to which she responded
“yes.” She further testified that when the residence was searched she saw
several plastic bags tied together with four bottles in them by the front door.
3
The drug possession charge was elevated to aggravated possession as Appellant was charged and
convicted of possessing methamphetamine, a Schedule II controlled substance, in an amount equal to or
exceeding five (5) times the bulk amount but less than fifty (50) times the bulk amount.
Ross App. No. 15CA3507 15
{¶22} Stuart Angus, Appellant’s ex-husband, also testified on behalf
of the State. He testified that he went to Appellant’s residence after
receiving a call from Appellant’s son stating he had “come across some stuff
that he was really worried about.” He testified that he video recorded what
he saw when he arrived, which included a mason jar with a lid on it that had
“a liquid with a white powdery substance and little black balls floating in
it[,]” coffee filters with liquid and white powdery substances in them,
additional coffee filters sealed in a package, straws, bottles of rubbing
alcohol, rubber tubing, and water bottles, all in Appellant’s bedroom.
{¶23} Detective Alan Lewis also testified at trial. He testified that
Appellant said “yes” when asked if methamphetamine was being
manufactured in the house. He testified that during the search of the
residence he found the following items in Appellant’s bedroom: a hair dryer,
a lot of aluminum foil (some with burn marks), coffee filters (some in
packages and some loose), a container of salt, a straw and a pipe. He
testified that the hair dryer was lying next to the salt and coffee filters. He
further testified that he found starting fluid on the back porch.
{¶24} Major Timothy Dickinson, a clandestine methamphetamine lab
technician, also testified. He testified regarding the process used to
manufacture methamphetamine, which includes using ingredients such as
Ross App. No. 15CA3507 16
salt, lithium and fuel, all found at Appellant’s residence, and items such as
mason jars, tubing, and a hydrochloric acid generator (HCL generator).
Officer Cory Hicks, who assisted with the meth lab clean-up, also testified.
He testified that he identified the bottles found inside a bag at Appellant’s
residence as four, active “one pot” methamphetamine labs. He testified that
aside from the four one pots, there was also an HCL generator present.
{¶25} Detective Chris Davis testified regarding Appellant’s admission
to methamphetamine being manufactured in her house. He testified that
during the search of the residence he observed a hair dryer, a container of
salt, a pipe, paraphernalia items, a clear mason jar, blue gloves, straws, black
tubing, foil with burn marks, and a couple of batteries, all located in
Appellant’s bedroom. He further testified that in the living room he
observed a plastic bag and a yellow book bag with three one pots, an HCL
generator, and coffee filters. He testified he found starting fluid in an
enclosed porch area. Finally, Megan Snyder, a forensic scientist in the drug
chemistry section at the Ohio Bureau of Criminal Identification and
Investigation (BCI), testified and she was qualified as an expert by a
stipulation of the parties. She testified that items sent for analysis that were
recovered from Appellant’s residence were identified as forty-five grams of
liquid containing methamphetamine, which is fifteen times the bulk amount.
Ross App. No. 15CA3507 17
{¶26} We conclude that the above evidence constitutes overwhelming
evidence of Appellant’s guilt on all three counts of the indictment.
Appellant admitted that methamphetamine was being manufactured in her
home, and four active one pot meth labs were found in her living room
which contained fifteen times the bulk amount. Further, there was evidence
that multiple ingredients and items used in the manufacture of
methamphetamine were found in her bedroom and other areas of her house.
{¶27} In State v. Love, this Court determined that the admission of
testimony indicating Love wanted a lawyer was constitutional error,
however, in addition to finding the error did not rise to the level of plain
error, we also acknowledged and applied a harmless error standard. Love at
¶ 32 and 34. After finding that the comment at issue was only mentioned
once and briefly and that the prosecutor did not elicit the statement directly,
but rather received it in response to a general question about what happened
during the course of the arrest, this Court applied a harmless error standard
of review, ultimately finding the error harmless beyond a reasonable doubt.
Love at ¶ 32-34. In reaching our decision, we noted that “the Ohio Supreme
Court has previously held that a single comment by a police officer
regarding a suspect’s silence without any suggestion that the jury infer guilt
from the silence constitutes harmless error.” Love at ¶ 35; citing State v.
Ross App. No. 15CA3507 18
Treesh, 90 Ohio St. 3d 460, 480; citing Meeks v. Havener (C.A. 6, 1976), 545
F.2d 9, 10.
{¶28} In State v. Bryant, supra, if admission of certain testimony
violated Bryant’s Fifth Amendment rights, this Court determined that a
harmless error standard of review was appropriate. Bryant at ¶ 26. Finding
that a curative instruction was given, that other evidence established Bryant
invoked her right to counsel, and that there was overwhelming evidence to
establish Bryant’s guilt, we found the error was harmless beyond a
reasonable doubt. Bryant at ¶ 31. Further, in State v. Runyan, a case cited by
Appellant in support of her argument, the court applied a harmless error
standard to the argument that Runyan’s Fourth Amendment rights were
violated by admission of testimony indicating Runyan refused consent to a
search. Runyan at *249. Ultimately, the court “assume[d] without deciding
that it would be error of constitutional magnitude for a trial court to permit a
prosecutor to comment on (or present testimony regarding) a defendant’s
refusal to consent to a warrantless search to support an inference of guilt.”
(internal footnotes omitted). Id. After finding that the comment at issue
arose only once during trial, that the “prosecution neither commented on
Runyan’s refusal to consent to a warrantless search, nor asked the jury to
draw any inferences from the refusal[,]” and that the evidence supporting
Ross App. No. 15CA3507 19
Runyan’s conviction was very strong, the court found the error was harmless
beyond a reasonable doubt. Id. at *250-251.
{¶29} Here, much like the scenario in both Love and Runyan,
Appellant’s refusal to consent to a search of her residence was mentioned
only one time. Further, as in Love, the prosecutor did not elicit the statement
directly, but rather received it in response to a general question about what
she witnessed when law enforcement arrived at Appellant’s residence.
Additionally here, the comment was not extensive, as the State made no
further mention of the refusal, either in its case-in-chief or in closing, nor did
the prosecution at any time stress to the jury an inference of guilt from
Appellant’s refusal to search. Thus, applying the test set forth in Doyle, we
cannot conclude that either prong was met. However, as set forth above, if
the admission of Appellant’s refusal to search did deprive Appellant of her
Fourth Amendment rights, we conclude that the error was harmless beyond a
reasonable doubt. Absent this statement made by the State's witness, the
remaining evidence of Appellant's guilt is overwhelming.
{¶30} Accordingly, having found that any error in the admission of
testimony regarding Appellant’s refusal to consent to a search of her
residence was harmless beyond a reasonable doubt, her first assignment is
overruled.
Ross App. No. 15CA3507 20
ASSIGNMENT OF ERROR II
{¶31} In her second assignment of error, Appellant contends that the
trial court erred when it failed to merge her conviction for manufacturing
methamphetamine with her conviction for illegal assembly or possession of
chemicals in order to manufacture methamphetamine. She argues that it is
impossible to manufacture methamphetamine without possessing the
materials to do it, and that she was not alleged to have committed the
offenses on separate days, locations or times. The State contends that the
two counts caused separate, identifiable harm and were committed with a
separate motivation. Extensive discussion took place between counsel and
the trial court before sentencing regarding whether the counts should merge.
The trial court ultimately decided that they did not and sentenced Appellant
to a separate, concurrent sentence on Count two.
{¶32} The Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution provides that no person shall “be subject for the
same offence to be twice put in jeopardy of life or limb,” and this protection
applies to Ohio citizens through the Fourteenth Amendment and is
additionally guaranteed by Article I, Section 10 of the Ohio Constitution.
This constitutional protection prohibits multiple punishments for the same
offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072 (1969),
Ross App. No. 15CA3507 21
overruled on other grounds; Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201
(1989).
{¶33} The General Assembly enacted R.C. 2941.25 to specify when
multiple punishments can be imposed:
“(A) 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.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.”
{¶34} Appellate courts apply a de novo standard of review in an
appeal challenging a trial court's determination of whether offenses
constitute allied offenses of similar import that must be merged under R.C.
2941.25. State v. Williams, 134 Ohio St. 3d 482, 2012-Ohio-5699, 983
N.E.2d 1245, ¶ 28; State v. Cole, 4th Dist. Athens No. 12CA49, 2014-Ohio-
2967, ¶ 7. Merger is a sentencing question, and the defendant bears the
burden of establishing his entitlement to the protection of R.C. 2941.25.
State v. Washington, 137 Ohio St. 3d 427, 2013-Ohio-4982, 999 N.E.2d 661,
¶ 18.
Ross App. No. 15CA3507 22
{¶35} The Supreme Court of Ohio recently clarified the applicable
analysis in determining when two offenses merge under R.C. 2941.25 in
State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892. “In
determining whether offenses are allied offenses of similar import within the
meaning of R.C. 2941.25, courts must evaluate three separate factors—the
conduct, the animus, and the import.” Id. at paragraph one of the syllabus.
“Under R.C. 2941.25(B), a defendant whose conduct supports multiple
offenses may be convicted of all the offenses if any one of the following is
true: (1) the conduct constitutes offenses of dissimilar import, (2) the
conduct shows that the offenses were committed separately, or (3) the
conduct shows that the offenses were committed with separate animus.” Id.
at paragraph three of the syllabus.
{¶36} As set forth above, the jury found Appellant guilty of illegal
manufacture of drugs (methamphetamine), illegal assembly or possession of
chemicals for the manufacture of drugs, and aggravated possession of drugs.
We have already determined that the jury’s finding of guilt on all of the
charges was supported by overwhelming evidence. The trial court already
merged count three with count one (aggravated possession and illegal
manufacture) for purposes of sentencing. Thus, we are presented with the
Ross App. No. 15CA3507 23
question of whether count two (illegal assembly/possession) should have
also been merged with count one for purposes of sentencing.
{¶37} In State v. Chandler, 4th Dist. Highland No. 14CA11, 2014-
Ohio- 5215, ¶ 25, we determined that “[i]t is possible to possess or assemble
the chemicals necessary to manufacture meth, and then to manufacture the
drug itself.” As we subsequently noted in State v. Evans-Goode, 4th Dist.
Meigs No. 15CA10, 2016-Ohio-5361, ¶ 34:
“Although Chandler was decided under the rubric of State v.
Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, and without the benefit of the more recent clarification of
the test issued by the Ohio Supreme Court in State v. Ruff,
supra, we believe the reasoning set forth in Chandler
nevertheless provides appropriate guidance for the
determination of this issue and is applicable to the case
presently before us.”
In Evans-Goode, a case that involved charges of illegal assembly or
possession, as well as manufacturing of methamphetamine, and which
stemmed from a single encounter with law enforcement, we concluded that
the two counts did not merge where the record indicated the offenses
expanded beyond the date contained in the indictment and where “law
enforcement found an abundance of additional ingredients scattered
throughout the residence ‘over and above’ what was used for the * * *
cook.” Evans-Goode at ¶ 31.
Ross App. No. 15CA3507 24
{¶38} Here, Appellant contends that the counts at issue should have
been merged based upon this Court’s prior reasoning in State v. Sluss, 4th
Dist. Highland No. 13CA24, 2014-Ohio-4156, as the present indictment
alleges that both the illegal assembly/possession and the manufacturing
occurred on July 11, 2014. We rejected a similar argument in Evans-Goode,
reasoning as follows:
“First, in Sluss, we were assuming a hypothetical and even then,
we essentially stated that such hypothetical ‘may’ result in a
different outcome, i.e. offenses being determined to be allied
and requiring merger, not that a different outcome would be
required. Sluss at ¶ 22. Second, we are more inclined to apply
the reasoning of the concurring opinion written by Judge
Harsha in Sluss, which seems to place more weight on the fact
that the evidence indicated Sluss had ‘chemicals used to
manufacture methamphetamine “over and above” what he used
in the two “cooks” * * *.’ Sluss at ¶ 31 (concurring opinion).”
We likewise reject the argument raised herein.
{¶39} Much like the facts before us in State v. Evans-Goode, supra,
although the indictment alleges that all of the offenses occurred on the same
day, July 11, 2014, the evidence introduced at trial indicates that while four
active one pot methamphetamine labs were found in Appellant's residence
on July 11, 2014, various precursor items used in the manufacture of
methamphetamine were present in Appellant's residence on July 10, 2014.
A video taken on Appellant's ex-husband, Stuart Angus's, cell phone, which
was played for the jury, reveals that a mason jar, coffee filters with liquid
Ross App. No. 15CA3507 25
and a white powdery substance in them, a sealed package of coffee filters,
straws, rubber tubing and water bottles were all located in Appellant's
bedroom on July 10, 2014. Also, aside from the four active one pots found
in the residence on July 11, 2014, law enforcement who responded to the
scene found starting fluid located outside the residence, and found a box of
Morton salt, a package of unused coffee filters, and a "couple" of batteries.
The only question is whether there was sufficient evidence that these items
were acquired on different days leading up to the manufacture or "cook" of
the methamphetamine at issue, and/or whether there were quantities of
chemicals "over and above" those used in the manufacture of the four one
pots that were located in the residence.
{¶40} There is no evidence in the record as to when the various
precursor items or ingredients were purchased or assembled. All we can
glean from the record is that individual ingredients used in the manufacture
of methamphetamine were present in Appellant's residence on July 10, 2014,
the day before the four active one pots were found. Further, the search of
the residence on July 11, 2014 revealed that in addition to the four active one
pots, Detective Alan Lewis testified that he observed coffee filters in a
package and a container of salt in Appellant's bedroom. He testified that he
observed a can of starting fluid on Appellant's back porch. Detective Chris
Ross App. No. 15CA3507 26
Davis testified that he located a container of Morton salt and a couple of
batteries in Appellant's bedroom, coffee filters in the living room and
starting fluid on an enclosed porch area. The detectives did not testify to
finding empty salt boxes, empty cans of starter fluid, or destructed batteries.
Thus, the logical inference is that there was salt in the container, starter fluid
in the can and the batteries were intact.4 Although it would have been
preferable for the testimony to include descriptions of the quantities of these
items found, we do not believe it is essential.
{¶41} We conclude that the evidence in the record before us indicates
that Appellant was illegally assembling chemicals used in the manufacture
of methamphetamine beginning at least on July 10, 2014, that were used in
the manufacture of methamphetamine, which was confirmed by the
identification of four active one pot methamphetamine labs located in her
residence on July 11, 2014. Further, Appellant was in possession of salt,
batteries, and starter fluid over and above the quantities used in the
methamphetamine manufactured by the four active one pots. Thus, based
upon the foregoing, we conclude that the offenses presently at issue were
committed separately and with a separate animus and are not allied offenses
of similar import subject to merger.
4
A photo exhibit admitted into evidence does show two batteries remaining in an opened package.
Ross App. No. 15CA3507 27
{¶42} We acknowledge that this is a very close case, in the absence of
testimony regarding the quantities of the ingredients remaining over and
above what was already used in the cook, and in the absence of evidence
such as receipts demonstrating purchases of the various precursor items on
different days or pseudoephedrine purchase log evidence. Nevertheless, we
conclude the evidence sufficiently establishes that various precursor
materials were being acquired leading up to the manufacture of the four one
pots on July 11, 2014, and that quantities of salt, batteries, and starting fluid
were found in Appellant’s house “over and above” what was used during the
manufacturing process that had already occurred. As such, we cannot
conclude that the trial court erred in failing to merge counts one and two for
purposes of sentencing and Appellant's second assignment of error is
overruled.
{¶43} Accordingly, having found no merit to either of the assignments
of error raised by Appellant, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Ross App. No. 15CA3507 28
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 Ross 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.
Abele, J.: Concurs in Judgment and Opinion.
Hoover, J.: Concurs in Judgment and Opinion as to Assignment of Error II;
Concurs in Judgment Only as to Assignment of Error I.
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.