[Cite as State v. Burns, 2016-Ohio-7375.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 15CA85
JOANNE BURNS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas, Case No. 2014CR0555 R
JUDGMENT: Affirmed, in part, Reversed, in part, and
Remanded
DATE OF JUDGMENT ENTRY: October 14, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BAMBI COUCH PAGE RANDALL E. FRY
Prosecuting Attorney 10 West Newlon Place
Richland County, Ohio Mansfield, Ohio 44902
By: DANIEL M. ROGERS
Assistant Prosecuting Attorney
Richland County Prosecutor’s Office
38 S. Park Street
Mansfield, Ohio 44902
Richland County, Case No. 15CA85 2
Hoffman, J.
{¶1} Defendant-appellant Joanne Burns appeals her conviction and sentence
entered by the Richland County Court of Common Pleas on one count of illegal
manufacture of methamphetamines, in the vicinity of a school zone and/or juvenile; one
count of illegal assembly or possession of chemicals for the manufacture of
methamphetamines, in the vicinity of a school zone and/or a juvenile; and two counts of
child endangering. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 12, 2014, Officer Mandy Lynn Rodriquez of the Mansfield
Metrich Drug Task Force received a call from a pharmacist at the Walgreens in Mansfield,
Ohio. The pharmacist reported suspicious conduct on the part of two women attempting
to purchase a quantity of pseudoephedrine while visiting the Walgreens pharmacy. The
women had trouble producing identification, and one of the women left leaving her
purported identification behind. Each of the women had prior significant history of
purchasing pseudoephedrine.
{¶3} Officer Rodriquez and Officer Steven Schivinski of the Mansfield Metrich
Drug Task Force drove to the Walgreens and spoke with the pharmacist, retrieving the
left-behind identification. The officers learned the identification belonged to Appellant,
who had a suspended driver's license but had been issued a state identification card.
{¶4} The officers then drove to the address indicated on the identification card
left at the pharmacy, that being 751 Armstrong in Mansfield, Ohio. The premises at the
address appeared to be abandoned. A subsequent inquiry revealed Appellant was
Richland County, Case No. 15CA85 3
presently living at 739 Bowman Street in Mansfield, Ohio. The officers proceeded to that
address.
{¶5} Upon arrival there, a boy about twelve years of age answered the door,
stating no adults were present at the home. The officers returned to the residence an hour
later, noticing a vehicle in the driveway. Upon knocking, two adults answered the door,
who were identified as Appellant and her husband, Lyle Burns. The officers obtained
verbal consent to search the residence from the Burns.
{¶6} Present in the home were: Appellant, Lyle Burns, co-defendant Tracy Isaac,
and two minor children. The female child approximately five or six years of age belonged
to Appellant and her husband, and a male child, approximately twelve years of age, who
had previously answered the door and belonged to Tracy Isaac, the co-defendant herein.
{¶7} Tracy Isaac indicated to the officers she had been staying at the residence
for about two weeks due to marital problems with her husband. At the time the officers
entered the home, Isaac was in an upstairs bedroom.
{¶8} Officers conducted a search of the home, including the upstairs area where
the Appellant and her co-defendant had bedrooms, and the basement. In the basement
of the residence, officers found: two bottles of liquid, rubber tubing, coffee filters, Coleman
fuel, ammonia nitrate, peeled lithium batteries, and cold packs. The officers also
conducted a test which indicated the presence of ammonia, necessary in the manufacture
of methamphetamine. The items were submitted to the Mansfield Police Crime Lab. The
liquid found in the one-pot cooking vessel was tested for the presence of
methamphetamine.
Richland County, Case No. 15CA85 4
{¶9} The Richland County Grand Jury indicted Appellant as follows: Count One,
manufacturing or engaging in the production of methamphetamine, in the vicinity of a
school zone and/or juvenile, in violation of R.C. 2925.04(A) and (C)(3)(b), a felony of the
first degree; Count Two: assembling or possessing one or more chemicals used to
manufacture methamphetamine, in the vicinity of a school and/or juvenile, in violation of
R.C. 2925.041(A) and (C)(2), a felony of the second degree; and Counts Three and Four,
endangering children, in violation of R.C. 2919.22(B)(6), both felonies of the third degree.
{¶10} On August 4, 2015, the State filed a motion for joinder of defendants. On
August 25, 2015, Appellant filed a memorandum in opposition. In the memorandum in
opposition to the motion asserting there was insufficient evidence to establish she had
"any knowledge or involvement in the alleged manufacture of the methamphetamine,"
and also alleging the items belonged to someone else with access to the residence.
{¶11} On September 2, 2015, six days prior to trial, the State provided
supplemental discovery identifying Anthony Tambasco as an expert witness who tested
a substance from the search and provided a lab report on August 13, 2014, identifying
said substance as methamphetamine.
{¶12} On September 4, 2015, Appellant filed a motion in limine to preclude the
introduction of Tambasco’s report and the making of reference to any substance identified
as methamphetamine.
{¶13} Discovery materials had been provided by the State to Appellant on
September 30, 2014. Supplemental discovery was provided on October 6, 2014,
December 22, 2014, February 27, 2015 and April 29, 2015. The State had not identified
the expert witness regarding the chemical analysis performed in relation to
Richland County, Case No. 15CA85 5
methamphetamine; nor was the lab report in any of its discovery responses despite the
fact Tambasco’s report had been prepared more than one year prior to the scheduled day
of trial. The State did not allege otherwise.
{¶14} On the record, and prior to the start of trial, Appellant again motioned the
court to exclude the expert testimony relative to the testing of the State's evidence not
provided to Appellant in discovery until days before the trial, and the lab report identifying
the liquid as methamphetamine.
{¶15} The trial court overruled the motion as to the expert testimony and the lab
report.
{¶16} Appellant’s motion in limine further moved for the exclusion of testimony
relative to NPLEX records as prejudicial, non-relevant evidence. Particularly, Appellant
argued evidence from a retailer dating back to June 1, 2013, in the NPLEX database is
highly prejudicial, non-relevant evidence as to the charges herein. The trial court
overruled the motion, finding the evidence relevant to the ultimate issue in the case as to
who was manufacturing and who was purchasing the pseudoephedrine.
{¶17} The matter proceeded to jury trial. The jury found Appellant guilty of the
charges as stated in the indictment. On September 14, 2015, the trial court sentenced
Appellant to a mandatory ten years imprisonment on Count One; the trial court merged
Appellant's conviction on Count Two with his conviction on Count One. The trial court
sentenced Appellant to two years mandatory time on each Count in Three and Four,
ordering the terms to run concurrently, for a total term of ten years. Appellant was also
sentenced to a five year term of mandatory post-release control, and a sixty month driver's
license suspension.
Richland County, Case No. 15CA85 6
{¶18} Via Order of September 17, 2015, the trial court imposed costs of the jury
in the amount of $1,400 jointly and severally between Appellant and her codefendant
Tracy Isaac.
{¶19} Appellant appeals, assigning as error:
{¶20} “I. THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S
MOTION FOR AQUITTAL [SIC] PURSUANT TO OHIO RULE OF CRIMINAL
PROCEDURE RULE 29A.
{¶21} “II. THE APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS THE APPELLANT’S TRIAL
COUNSEL FAILED TO RENEW HIS OBJECTION TO THE APPELLEE’S MOTION FOR
JOINDER OF OFFENSES.
{¶22} “III. THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT’S
MOTION IN LIMINE FILED BY THE APPELLANT’S TRIAL COUNSEL ON SEPTEMBER
4, 2015 CONCERNING THE INTRODUCTION OF EVIDENCE IDENTIFIED AS
METHAMPHETAMINE.
{¶23} “IV. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING
EVIDENCE THAT WAS PREJUDICIAL TO THE APPELLANT.”
I.
{¶24} In the first assignment of error, Appellant maintains the trial court erred in
overruling her motion for acquittal pursuant to Ohio Rule Criminal Rule 29(A).
{¶25} Criminal Rule 29(A) provides a court must order the entry of a judgment of
acquittal on a charged offense if the evidence is insufficient to sustain a conviction on the
offense. Crim.R. 29(A). However, “a court shall not order an entry of judgment of acquittal
Richland County, Case No. 15CA85 7
if the evidence is such that reasonable minds can reach different conclusions as to
whether each material element of a crime has been proved beyond a reasonable doubt.”
State v. Bridgeman, 55 Ohio St.2d 261 (1978), syllabus. Thus, a motion for acquittal tests
the sufficiency of the evidence. State v. Tatum, 3d Dist. Seneca No. 13–10–18, 2011–
Ohio–3005, ¶ 43, citing State v. Miley, 114 Ohio App.3d 738, 742 (4th Dist.1996).
{¶26} When an appellate court reviews a record for sufficiency, 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. Monroe, 105 Ohio St.3d 384, 2005–Ohio–2282, ¶
47. Sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
Accordingly, the question of whether the offered evidence is sufficient to sustain a verdict
is a question of law. State v. Perkins, 3d Dist. Hancock No. 5–13–01, 2014–Ohio–752, ¶
30, citing Thompkins at 386.
{¶27} Appellant was convicted in Count One of illegal manufacture of
methamphetamine, in violation of R.C. 2925.04(A) and (C)(3)(b), within the vicinity of a
school zone and/or a juvenile; in Count Two of illegal possession of chemicals for the
manufacture of methamphetamine, in violation of R.C. 2925.041(A) and (C)(2), in the
vicinity of a school zone and/or juvenile; and in Counts Three and Four of endangering
children, in violation of R.C.2919.22(B)(6).
{¶28} As to the manufacturing and possession of chemicals necessary to
manufacture methamphetamine (Counts One and Two), Appellant argues the State failed
to establish she had knowledge of the manufacture or possession of the chemicals in the
residence.
Richland County, Case No. 15CA85 8
{¶29} Illegal manufacture of methamphetamine, in violation of R.C. 2925.04(A)
and (C)(3)(b), reads,
(A) No person shall knowingly cultivate marihuana or knowingly
manufacture or otherwise engage in any part of the production of a
controlled substance.
***
(C)(1) Whoever commits a violation of division (A) of this section that
involves any drug other than marihuana is guilty of illegal manufacture of
drugs, and whoever commits a violation of division (A) of this section that
involves marihuana is guilty of illegal cultivation of marihuana.
***
{¶30} Count Two, in violation of R.C. 2925.041(A) and (C)(2) reads,
(A) No 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.
***
{¶31} Appellant maintains the State failed to prove the culpable mental state of
“knowingly” as to Counts One and Two. Appellant asserts she had no knowledge of the
Richland County, Case No. 15CA85 9
methamphetamine lab or the chemicals necessary to manufacture methamphetamine in
her basement, and the State did not establish her knowledge of the same. We disagree.
{¶32} Viewing the evidence in a light most favorable to the prosecution, we find a
rational trier of fact could have found the essential elements of the crimes proven beyond
a reasonable doubt. The State provided testimony of Appellant purchasing significant
quantities of pseudoephedrine, including the recent attempted purchase of
pseudoephedrine at Walgreens with co-defendant Tracy Isaac on August 12, 2014. In
addition, Appellant purchased an inordinate amount of pseudoephedrine in the months
prior to August 12, 2014.
{¶33} Testimony at trial established Appellant frequented the basement in her
home. Items consistent with the manufacture of methamphetamine were discovered in
the basement of Appellant’s home. The liquid substance taken from Appellant’s home
was identified as methamphetamine. Metrich Detective Wheeler confiscated items
consistent with a one-pot cook methamphetamine lab. We find the trial court did not err
in denying Appellant’s Criminal Rule 29 motion for acquittal as to Counts One and Two.
{¶34} Appellant was further charged in Counts Three and Four with endangering
children, in violation of R.C. of 2919.22(B)(6), which reads,
(B) No person shall do any of the following to a child under eighteen
years of age or a mentally or physically handicapped child under twenty-
one years of age:
***
Richland County, Case No. 15CA85 10
(6) Allow the child to be on the same parcel of real property and within
one hundred feet of, or, in the case of more than one housing unit on the
same parcel of real property, in the same housing unit and within one
hundred feet of, any act in violation of section 2925.04 or 2925.041 of the
Revised Code when the person knows that the act is occurring, whether or
not any person is prosecuted for or convicted of the violation of section
2925.04 or 2925.041 of the Revised Code that is the basis of the violation
of this division.
[Emphasis added.]
{¶35} We find there was sufficient testimony presented at trial both children
resided at 739 Bowman Street on August 12, 2014, during which time there was evidence
of a one-pot methamphetamine lab discovered by law enforcement. The statute does not
require the state to prove Appellant had authority or the ability to control the child, contrary
to Appellant’s argument with regard to the count regarding her codefendant’s minor child.
{¶36} However, it is clear the statute requires the State establish Appellant did,
“Allow the child to be on the same parcel of real property and within one hundred feet
of…” the methamphetamine lab. While, the State demonstrated the minor children were
allowed on the same parcel of property, it did not establish the children were within one
hundred feet of the methamphetamine lab.1
1 The State cites State v. Smith, 3rd Dist. No. 6-14-14, 2015-Ohio-2977, as support for the
proposition Ohio Courts have held a juvenile’s presence in the residence, notwithstanding
the juvenile’s not witnessing the manufacturing of methamphetamine or actually entering
the basement where the meth lab existed, satisfies the sufficiency of the evidence for
drug manufacturing or cultivation of marijuana where a 100 foot distance requirement
Richland County, Case No. 15CA85 11
{¶37} In this case, the statute specifically requires the State to prove the children
were allowed on the parcel of property and within one hundred feet of the
methamphetamine lab. No one testified the children were ever in the basement or the
specific distance between where the children had access to in the house and the meth
lab in the basement. Therefore, the State has not met the burden of proof.
{¶38} We find there was insufficient evidence to find the elements of child
endangering proven beyond a reasonable doubt, and the trial court erred in denying
Appellant’s Criminal Rule 29 motion for acquittal as to Counts Three and Four.
{¶39} The first assignment of error is overruled, in part, and sustained, in part.
II.
{¶40} In the second assignment of error, Appellant maintains she was denied the
effective assistance of counsel because her trial counsel failed to renew her objection to
the State’s motion for joinder of offenses.
{¶41} On August 4, 2015, the State filed a pretrial Motion for Joinder of
Defendants. Appellant filed a memorandum in opposition on August 25, 2015. The trial
court granted the motion for joinder on August 26, 2015, before trial commenced.
{¶42} If an objection to joinder is not renewed after the State rests its case or at
the conclusion of evidence, the objection to joinder is waived; forfeiting the issue on
appeal. State of Ohio v. Simpson 9th Dist. 12CA010147, 2013-Ohio-4276, United States
must be met. However, in Smith, the defendant did not move the trial court for a Criminal
Rule 29 motion for acquittal, thus waiving his challenge to the sufficiency of the evidence.
The state in Smith presented testimony the cultivation of marijuana was within 1000 feet
of a school. The State only had to prove the cultivation occurred within the vicinity of a
school or a juvenile, as the defendant was charged in the alternative. We find the State’s
reliance on Smith herein misplaced as the State herein had the burden of proving the
juvenile was within 100 feet of the meth lab.
Richland County, Case No. 15CA85 12
v. Porter 441 F.2d 1204 (1971). Appellant’s trial counsel did not renew her objection to
joinder.
{¶43} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,
“a court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.
158 (1955).
{¶44} “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the
wide range of professionally competent assistance.” Id. at 690.
{¶45} Even if a defendant shows counsel was incompetent, the defendant must
then satisfy the second prong of the Strickland test. Under this “actual prejudice” prong,
the defendant must show “there is a reasonable probability, but for counsel's
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694.
{¶46} When counsel's alleged ineffectiveness involves the failure to pursue a
motion or legal defense, this actual prejudice prong of Strickland breaks down into two
components. First, the defendant must show the motion or defense “is meritorious,” and,
second, the defendant must show there is a reasonable probability the outcome would
Richland County, Case No. 15CA85 13
have been different if the motion had been granted or the defense pursued. See
Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 (1986);
see, also, State v. Santana, 90 Ohio St.3d 513, 739 N.E.2d 798 (2001), citing State v.
Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).
{¶47} Trial counsel's failure to renew the objection to the motion for joinder is not
per se ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000–
Ohio–0448. Counsel can only be found ineffective for failing to renew the objection, if,
based on the record, the motion would have been granted. State v. Lavelle, 5th Dist. No.
07 CA 130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06–CA–88, 2007–
Ohio–3009, at ¶ 86.
{¶48} Criminal Rule 8 states, in pertinent part,
(B) Joinder of Defendants. Two or more defendants may be charged
in the same indictment, information or complaint if they are alleged to have
participated in the same act or transaction or in the same series of acts or
transactions constituting an offense or offenses, or in the same course of
criminal conduct. Such defendants may be charged in one or more counts
together or separately, and all of the defendants need not be charged in
each count.
{¶49} Our standard of review in reviewing a trial court’s denial of a motion for
joinder is an abuse of discretion. State v. Allen, 5th Dist. No. 2009 CA 13, 2010-Ohio-
4644; State v. Kochen-Sparger, 6th Dist. No. E14-132, 2016-Ohio-2870; State v.
Richland County, Case No. 15CA85 14
Peterson, 8th Dist. No. 100897, 100899, 2015-Ohio-1013. An abuse of discretion is more
than an error in law or judgment. Rather, it implies the court’s attitude is unreasonable,
arbitrary or unconscionable. Berk v. Matthews 53 Ohio St 3d 161, 559 N.E. 2d 1301
(1990); Blakemore v. Blakemore 5 Ohio St.3d 217, 450 N.E. 2d 1140 (1983); Elkins v.
Reed 5th Dist. No. 2013CA00090, 2014-Ohio-1216.
{¶50} Here, we find the trial court did not abuse its discretion in joining the cases
for trial because the co-defendants were alleged to have participated in the same act or
transaction or same series of acts or transactions.
{¶51} Furthermore, Appellant has not demonstrated prejudice as a result of the
joinder of the defendants. Appellant’s argument she was prejudiced by any wrong doing
on the part of her codefendant is speculative at best. Neither codefendant made a
statement relative to the other prior to trial or during trial. There was no evidence offered
pertaining to either codefendant more prejudicial to one than to the other. Appellant has
failed to establish the second prong of Strickland, that but for any alleged error on the part
of trial counsel, the outcome of the trial would have been otherwise.
{¶52} The second assignment of error is overruled.
III.
{¶53} In the third assignment of error, Appellant asserts the trial court erred in
denying her motion in limine to exclude the testimony of Anthony Tambasco as an expert
witness regarding chemical analysis performed on materials confiscated from the
residence during the search the herein, and lab report prepared by Tambasco identifying
the liquid as methamphetamine.
Richland County, Case No. 15CA85 15
{¶54} Appellant’s motion stems from the State’s failure to provide the lab report
prior to trial, pursuant to Ohio Criminal Rule 16. The rule provides,
(A) Purpose, Scope and Reciprocity. This rule is to provide all
parties in a criminal case with the information necessary for a full and fair
adjudication of the facts, to protect the integrity of the justice system and
the rights of defendants, and to protect the well-being of witnesses, victims,
and society at large. All duties and remedies are subject to a standard of
due diligence, apply to the defense and the prosecution equally, and are
intended to be reciprocal. Once discovery is initiated by demand of the
defendant, all parties have a continuing duty to supplement their
disclosures.
***
(K) Expert Witnesses; Reports. An expert witness for either side
shall prepare a written report summarizing the expert witness’s testimony,
findings, analysis, conclusions, or opinion, and shall include a summary of
the expert’s qualifications. The written report and summary of qualifications
shall be subject to disclosure under this rule no later than twenty-one days
prior to trial, which period may be modified by the court for good cause
shown, which does not prejudice any other party. Failure to disclose the
written report to opposing counsel shall preclude the expert’s testimony at
trial.
(L) Regulation of Discovery.
Richland County, Case No. 15CA85 16
(1) The trial court may make orders regulating discovery not
inconsistent with this rule. If at any time during the course of the
proceedings it is brought to the attention of the court that a party has failed
to comply with this rule or with an order issued pursuant to this rule, the
court may order such party to permit the discovery or inspection, grant a
continuance, or prohibit the party from introducing in evidence the material
not disclosed, or it may make such other order as it deems just under the
circumstances.
***
Ohio Crim. R. 16
{¶55} Six days prior to the start of trial on September 22, 2015, the State first
provided Appellant’s trial counsel with Supplemental Discovery identifying Anthony
Tambasco as an expert witness and providing the lab report he prepared on August 13,
2014. The lab report identified the substance found at 739 Bowman Street in Mansfield
as methamphetamine. The trial court held a hearing on Appellant’s motion in limine prior
to trial.
{¶56} Appellant maintains she was prejudiced by the State’s late disclosure as
she was unable to have the substance independently tested or to obtain her own expert
witness to testify as to the substance.
{¶57} The State responded Appellant was provided with an evidence admission
slip reflecting a clear liquid had been seized from the residence and had been submitted
to the Mansfield Crime Lab. This information had been provided during initial discovery.
Richland County, Case No. 15CA85 17
The State maintains Appellant was therefore on notice and could have independently
tested the substance, and could have obtained her own expert witness.2
{¶58} In City of Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, the Ohio Supreme
Court held,
As this court stated in State v. Howard (1978), 56 Ohio St.2d 328,
333, 10 O.O.3d 448, 451, 383 N.E.2d 912, 915, “[t]he philosophy of the
Criminal Rules is to remove the element of gamesmanship from a trial.” The
purpose of discovery rules is to prevent surprise and the secreting of
evidence favorable to one party. The overall purpose is to produce a fair
trial. State v. Mitchell (1975), 47 Ohio App.2d 61, 80, 1 O.O.3d 181, 192,
352 N.E.2d 636, 648.
***
We adopt the rationale upon which the opinions of these courts is
based and find that a trial court must inquire into the circumstances
surrounding a violation of Crim.R. 16 prior to imposing sanctions pursuant
to Crim.R. 16(E)(3). Factors to be considered by the trial court include the
extent to which the prosecution will be surprised or prejudiced by the
witness' testimony, the impact of witness preclusion on the evidence at trial
and the outcome of the case, whether violation of the discovery rules was
willful or in bad faith, and the effectiveness of less severe sanctions.
2 For Appellee to suggest the defendant was somehow at fault for not pursuing testing
after being put on notice is somewhat disingenuous given the fact the prosecutor was
obviously also on notice of, yet failed to discover, the report for over a year after its
preparation.
Richland County, Case No. 15CA85 18
{¶59} In State v. Wiles (1991), 59 Ohio St.3d 71, 78–79, 571 N.E.2d 97, the
Supreme Court stated a trial court has discretion under Crim.R. 16(E)(3) to determine the
appropriate response for failure of a party to disclose material subject to a valid discovery
request. See also State v. Parson (1983), 6 Ohio St.3d 442, 6 OBR 485, 453 N.E.2d 689.
To determine whether a trial court has abused its discretion in dealing with Crim.R. 16
violations, we look to whether (1) the violation was willful, (2) foreknowledge would have
benefited the defendant, and (3) the defendant suffered prejudice as a result of the state's
failure to disclose the information. Wiles, supra. See, State v. Jones, 2009-Ohio-2381, ¶
14, 183 Ohio App. 3d 189, 193–94, 916 N.E.2d 828, 831 abrogated by State v. Darmond,
2013-Ohio-966, ¶ 14, 135 Ohio St. 3d 343, 986 N.E.2d 971
{¶60} The trial court retains discretion to make sanctions other than precluding an
expert’s testimony. State v. Viera, Fifth Dist. No. 11CAA020020, 2011-Ohio-5263. The
trial court is required to impose the least severe sanction consistent with the purpose and
rules of discovery. State v. Opp, 3rd Dist. 13-13-33, 2014-Ohio-1138. State v. Opp, supra,
Opp holds violations of Criminal Rule 16(K) only amount to reversible error if:
1. The State willfully violated the rule;
2. Foreknowledge of the information would have benefitted the
accused in the preparation of his or her defense;
3. The accused suffered some prejudice as a result. Id.
Opp, supra.
Richland County, Case No. 15CA85 19
{¶61} We find the State’s late disclosure of their expert witness and the lab report
were not prejudicial to Appellant’s theory of defense. The trial court found the State did
not act willfully in violating Rule 16, and Appellant does not allege the State acted willfully
herein. Though clearly negligent in failing to comply with Criminal Rule 16, such
negligence does not necessarily establish willfulness.
{¶62} Appellant was aware items consistent with the manufacture of
methamphetamine and chemicals necessary for the manufacture of methamphetamine
were confiscated from her home. Her theory of defense was she had no knowledge of
the methamphetamine lab.3
{¶63} The trial court did not error in denying Appellant’s motion in limine as
Appellant has not demonstrated the State acted willfully in providing late disclosure of the
discovery, and Appellant has not demonstrated prejudice as a result of the same.
{¶64} The third assignment of error is overruled.
IV.
{¶65} In the fourth assigned error, Appellant asserts the trial court abused its
discretion in admitting testimony of Appellant’s past purchases of pseudoephedrine.
Appellant argues the evidence is highly prejudicial and irrelevant as the indictment alleges
the crimes were committed on or about August 12, 2014 and the purchases were made
well before the instant charges. We disagree.
{¶66} Krista McCormick, an employee of Appriss, Inc., the company who
produces the National Precursor Lock Exchange (NPLEX), testified at trial herein.
3On August 25, 2015, Appellant filed a memorandum in opposition to the State’s Motion
for Joinder of Defendants arguing there was insufficient evidence to establish she had
“any knowledge or involvement in the alleged manufacture of methamphetamine.”
Richland County, Case No. 15CA85 20
McCormick explained, in Ohio, pharmacies report all over-the-counter pseudoephedrine
and ephedrine purchases to a database, NPLEX. The State limits the amount of
pseudoephedrine a consumer may purchase in a 30-day time limit.
{¶67} This Court recently affirmed the admission of NPLEX records as business
records under Ohio Evidence Rule 803(6) in State v. Coleman, Richland App. No. 14-CA-
82, 2015-Ohio-3907 and State v. McDonald, Fairfield No. 15-CA-45, 2016-Ohio-2699.
{¶68} In Coleman, this Court held,
All pharmacies must maintain a log book detailing the purchase or
attempted purchase. All Ohio pharmacies are required by law to report all
sales and attempted sales of pseudoephedrine to a central
pseudoephedrine clearing house, called NPLEX. The purpose of the
NPLEX system is to monitor suspicious purchases of pseudoephedrine
tablets. All purchase requests are submitted by the pharmacy to NPLEX
along with the customer's driver's license. All such transactions are
recorded and the information is available to law enforcement.
The law affirmatively imposes the duty to record and the contents of
the record. It can be assumed, therefore, the record was made at or near
the time of the purchase or attempted purchase.
{¶69} In United States v. Collins,799 F.3d 554, (6th Cir. 2015), the Sixth Circuit
Court of Appeals found an Appriss, Inc. employee a "qualified witness" for the purpose of
authenticating NPLEX records as business records under Fed. R. Evidence 803(6), which
is identical to Ohio Evidence Rule 803(6).
Richland County, Case No. 15CA85 21
{¶70} McCormick testified the records pertaining to Appellant indicated the most
recent transaction for July 17, 2014, and the earliest date reflected a transaction on
January 19, 2013. McCormick testified as to Appellant’s purchases from January 19,
2013, through July 17, 2014. McCormick testified as to Appellant’s purchases throughout
the time period, including completed purchases, attempted purchases and blocked
purchases.
{¶71} O.R.C. 3715.052 requires retailers of pseudoephedrine and ephedrine to
submit information to NPLEX, including the purchaser’s name, address, name and
quantity of the product purchased, date and time of purchase and government
identification provided, including the identification number, and agency issuing the
identification.
{¶72} The trial court found the testimony of McCormick relative to the NPLEX
information relevant as Appellant was charged with manufacturing methamphetamine
and possession of chemicals used for the manufacture of methamphetamine. The trial
court found the NPLEX information relevant to show Count II obtaining the possession of
chemicals necessary for the manufacture of methamphetamine and also as to
manufacturing. The trial court overruled Appellant’s objection, finding the same did not
arise to an Evidence Rule 404(B) issue.
{¶73} We do not find the trial court abused its discretion in admitting the testimony,
and Appellant’s fourth assignment of error is overruled. We find Appellant’s argument with
regard to “other bad acts” evidence not well taken. Appellant’s prior history established
she purchased legal quantities of pseudoephedrine or was blocked from purchasing the
same. The trial court overruled Appellant’s objection finding the same did not give rise to
Richland County, Case No. 15CA85 22
an Evidence Rule 404(B) issue. We agree. Appellant was charged with possession of
chemicals for manufacture of and the manufacture of methamphetamine. The testimony
of Krista McCormick as to the NPLEX records and Appellant’s history of purchasing
pseudoephedrine was relevant as to the charges.
{¶74} Appellant’s conviction and sentence in the Richland County Court of
Common Pleas is affirmed, in part, reversed, in part, and remanded for further
proceedings in accordance with this Opinion and the law.
By: Hoffman, J.
Farmer, P.J. and
Wise, J. concur