State v. Reynolds , 2013 Ohio 5055 ( 2013 )

[Cite as State v. Reynolds, 2013-Ohio-5055.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25641
Plaintiff-Appellee :
: Trial Court Case No. 2012-CR-2889
v. :
:
BILLY RAY REYNOLDS : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 15th day of November, 2013.
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MATHIAS H. HECK, JR., by MATTHEW T. CRAWFORD, Atty. Reg. #0089205, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LORI R. CICERO, Atty. Reg. #0079508, Cicero Law Office, LLC, 500 East Fifth Street, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
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HALL, J.,
{¶ 1} Billy Ray Reynolds appeals from his conviction and sentence following a jury
trial on one count of abusing harmful intoxicants in violation of R.C. 2925.31(A), a fifth-degree
felony.
{¶ 2} In his sole assignment of error, Reynolds challenges the legal sufficiency and
manifest weight of the evidence to support the conviction.
{¶ 3} The charge against Reynolds involved sniffing or “huffing” paint. At trial,
Trotwood police detective Jeremy Kinder testified about responding to a residence at 741
Ellsworth Drive on a disorderly-conduct call involving Reynolds. Upon arriving, Kinder saw
Reynolds’ cousin, Shawn Reynolds, standing in the driveway. Shawn led Kinder inside a garage
and pointed out a can of spray paint on a shelf. (Trial Tr. Vol. II at 172). The can had holes in it
and was dripping gold paint. (Id. at 174-175, 196). Kinder also noticed a “fairly strong” paint
odor. (Id. at 176). The detective entered the residence and encountered Reynolds. Kinder
described Reynolds’ demeanor as “calm” and “relaxed.” The detective did not notice any odor of
alcohol on Reynolds, who was dressed in jeans with a coat and hat. Kinder recalled that Reynolds
had duct tape wrapped around his ankles, wrists, and the cuffs of his pants. (Id. at 180). He
noticed gold paint on Reynolds’ coat, hat, and hands. (Id. at 181). In particular, he saw paint on
the front of the coat around the shoulders and chest area. (Id. at 188). He did not see any
freshly-painted items inside the garage or house. (Id. at 187). On cross examination, Kinder
acknowledged that he did not observe any paint on Reynolds’ mouth. (Id. at 192). He also did not
find any bags of paint or rags with paint on them—items that might be indicative of someone
“huffing” paint. (Id.). Kinder also acknowledged on cross examination that he did not specifically
look for gold paint inside the house. (Id. at 199).
{¶ 4} The next witness was Kimberly Delong, a Trotwood police officer. She also
responded to the disorderly-conduct call to 741 Ellsworth Drive. When she arrived, she saw
Reynolds being brought out in handcuffs. (Id. at 204). Delong observed paint on his hands and
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hat. She also recalled seeing speckles of paint in his mustache. (Id. at 205-207). Delong testified
that she picked up the can of spray paint at issue. When she did so, paint spilled from holes in the
can. (Id. at 211-212). She tried to place the can in an air-tight container to prevent any accelerant
from evaporating. Her effort failed, however, because the lids she had did not fit her air-tight
container. (Id. at 213-214). As a result, she emptied the paint from the can the best she could
and placed the can in a plastic bag. (Id. at 214).
{¶ 5} The State’s third witness was Cedric Hollabaugh, a forensic chemist at the Miami
Valley Regional Crime Laboratory. He testified that the spray can at issue could not be tested
because of the holes in it. (Id. at 229). He stated that the only purpose for testing would have been
to detect “harmful intoxicants” such as “volatile organic solvents.” (Id.). He explained that “once
the spray can is punctured, any possibility of a volatile organic solvent still being present would
have evaporated.” (Id.). Hollabaugh further explained that the volatile organic solvent he looks
for when testing spray cans is a substance called “toluene.” (Id. at 230). After examining the
subject paint can, he noted that the can listed its contents as including toluene. (Id. at 231). He
proceeded to explain how toluene mixes with paint to allow it to be sprayed and then evaporates,
leaving behind the paint. (Id.). On cross examination, Hollabaugh acknowledged that a harmful
intoxicant like toluene would not have remained in the paint can very long after it was punctured.
(Id. at 233). He also testified that he could not “conclude beyond a scientific certainty that there
was a harmful intoxicant in [the paint can] on September 23rd[.]” (Id. at 235). On redirect
examination, Hollabaugh added that he also could not say a harmful intoxicant was not in the
paint can at the time in question. (Id.). He then provided the following explanation for not testing
the can:
[Cite as State v. Reynolds, 2013-Ohio-5055.]
When the spray can is punctured, the harmful intoxicants or volatile
organic solvents evaporate. And they evaporate very quickly. So not knowing
when this was punctured, if it was packaged correctly in an air tight container, I
would have still analyzed it not knowing when it was punctured and how long it
had been exposed to air. In this case it was packaged improperly, therefore, I did
not analyze it.
(Id. at 237).
{¶ 6} The State’s next witness was Reynolds’ mother, America Reynolds. She testified
that she went to the store with Shawn and left Reynolds home alone. (Id. at 248). She returned
about an hour later and found him “messed up” and slurring his words. (Id. at 248-249).
America asked her son whether he had been sniffing paint. Reynolds denied it, but she saw gold
paint on his fingers and lips. (Id. at 249). America also noticed a paint smell that had not been
present before she went shopping. (Id. at 250). She did not see anything in the house freshly
painted. (Id.). America suspected that Reynolds had been sniffing paint, and she went to the
garage to search for the can. Reynolds followed her and became angry when Shawn found the
spray paint can at issue. (Id. at 253). According to America, Reynolds “got a little violent” and
threatened Shawn, resulting in the disorderly-conduct call to the police. (Id.). America admitted
that Reynolds had consumed “a couple beers” before she went to the store. She testified,
however, that he was not intoxicated from alcohol. (Id. at 254).
{¶ 7} Shawn Reynolds was the State’s final witness. He testified that defendant
Reynolds did not appear to be under the influence of anything before the trip to the store. (Id. at
268). Shawn recalled that Reynolds asked him to lock the door when he and America left. He
found the request odd because Reynolds never had said that before. (Id. at 269). Upon returning
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home, Shawn smelled paint and determined that it was coming from the garage. (Id. at 270). He
also noticed that Reynolds’ speech was slurred. (Id. at 271). Shawn then found the paint can,
which began spilling when he picked it up. (Id. at 276). Defendant Reynolds became “very
upset,” wanting him to put the can back. (Id. at 276-277).
{¶ 8} For his part, Reynolds did not testify and presented no defense. The jury found
him guilty of abusing harmful intoxicants. It also found that he had a prior conviction for the
same offense, making the current charge a fifth-degree felony. 1 The trial court imposed an
eight-month prison sentence. This appeal followed.
{¶ 9} As noted above, Reynolds challenges the legal sufficiency and manifest weight of
the evidence to support his conviction. He claims the State presented no evidence that he had
been “huffing” paint, no evidence that the paint can contained a harmful intoxicant, and no
evidence that he had a purpose to become intoxicated. Reynolds notes that the State’s expert,
Cedric Hollabaugh, did not test the paint can. He also stresses the existence of testimony that he
had consumed alcohol and that he was not caught with a paint can or with “huffing”
paraphernalia such as a rag or bag.
{¶ 10} When a defendant challenges the sufficiency of the evidence, he is arguing that
the State presented inadequate evidence on an element of the offense to sustain the verdict as a
matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000). “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.
1
At trial, several of the witnesses confirmed that Reynolds previously had been convicted of abusing harmful intoxicants.
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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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph
two of the syllabus.
{¶ 11} Our analysis is different when reviewing a manifest-weight argument. When a
conviction is challenged on appeal as being against the weight of the evidence, an appellate court
must review the entire record, weigh the evidence and all reasonable inferences, consider witness
credibility, 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. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52,
678 N.E.2d 541. A judgment should be reversed as being against the manifest weight of the
evidence “only in the exceptional case in which the evidence weighs heavily against the
conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 12} With the foregoing standards in mind, we conclude that Reynolds’ conviction is
supported by legally sufficient evidence and is not against the weight of the evidence. With
exceptions not applicable here, the statute under which he was convicted, R.C. 2925.31(A),
provides that “no person, with purpose to induce intoxication or similar physiological effects,
shall obtain, possess, or use a harmful intoxicant.” Another provision, R.C. 2925.01(I), defines
“harmful intoxicant” as including any volatile organic solvent or preparation containing a volatile
organic solvent.
{¶ 13} The State’s evidence supports a finding that Reynolds possessed or used a
harmful intoxicant, namely the volatile organic solvent toluene, with a purpose to induce
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intoxication. Although Hollabaugh did not test the can of gold spray paint, he identified toulene
as a volatile organic solvent, which the Revised Code classifies as a harmful intoxicant. He also
explained how toluene mixes with paint to allow it to be sprayed and then evaporates, leaving
behind the paint. Finally, Hollabaugh testified that the paint can found in the garage at 741
Ellsworth Drive listed its contents as including toulene. In light of Hollabaugh’s testimony, the
jury reasonably could have found that the paint can contained toulene, a harmful intoxicant, at the
time in question.
{¶ 14} The jury also reasonably could have found that Reynolds possessed or used the
paint can with a purpose to induce intoxication. A finding that Reynolds possessed or used the
paint can is supported by (1) testimony about the discovery of a spray can of dripping gold paint
in the garage, (2) testimony about a strong odor of paint being present, and (3) testimony that he
was observed with gold paint on his clothing and body. A finding that Reynolds had a purpose to
induce intoxication is supported by (1) testimony that he had gold paint on his mustache and lips,
(2) testimony that no freshly painted items were observed, (3) testimony that he asked for the
door to be locked when Shawn and America left, (4) testimony that he became angry and
threatening when Shawn found the paint can, and (5) testimony that he was slurring his speech
and appeared “messed up” when Shawn and America returned home.
{¶ 15} Having reviewed the record, we find ample evidence to support Reynolds’
conviction for abusing harmful intoxicants in violation of R.C. 2925.31(A). The conviction is
supported by legally sufficient evidence and is not against the manifest weight of the evidence.
{¶ 16} The assignment of error is overruled, and the judgment of the Montgomery
County Common Pleas Court is affirmed.
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FAIN, P.J., and GALLAGHER, J., concur.
(Hon. Eileen A. Gallagher, Eighth District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).
Copies mailed to:
Mathias H. Heck
Matthew T. Crawford
Lori R. Cicero
Hon. Mary K. Huffman