State v. Burns

2017 Ohio 7138

Opinion

[Cite as State v. Burns, 2017-Ohio-7138.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 15CA85 JOANNE BURNS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2014 CR 0555 R

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 7, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP KATHERINE R. ROSS-KINZIE Prosecuting Attorney Assistant State Public Defender Richland County, Ohio 250 East Broad St., Suite 1400 Columbus, Ohio 43215 By: JOSEPH C. SNYDER Assistant Prosecuting Attorney 38 South Park Street Mansfield, Ohio 44902 Richland County, Case No. 15CA85 2

Hoffman, P.J.

{¶1} Defendant-appellant Joanne Burns reopens her appeal of 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. Plaintiff-appellee

is the state of Ohio.1

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.

1 This matter comes before the Court following our granting of an application for reopening filed by Appellant following this Court’s Opinion and Judgment Entry entered in State v. Burns, Richland App. No. 15 CA 85, 2016-Ohio-7375. Richland County, Case No. 15CA85 3

{¶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

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 Richland County, Case No. 15CA85 4

liquid found in the one-pot cooking vessel was tested for the presence of

methamphetamine.

{¶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. The trial court granted the

motion for joinder.

{¶11} 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 the conviction on Count One. The trial court

sentenced Appellant to two years mandatory time on Counts 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.

{¶12} 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. Richland County, Case No. 15CA85 5

{¶13} Appellant filed a direct appeal of her conviction and sentence in State v.

Burns, Richland App. No. 15CA85, 2016-Ohio-7375. Via Opinion and Judgment Entry of

October 14, 2016, this Court affirmed the trial court’s denial of Appellant’s Criminal Rule

29(A) motion for acquittal as to 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; and 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 a juvenile.2 This Court reversed the trial court’s denial of Appellant motion for

acquittal as to Counts Three and Four, Endangering Children, in violation of R.C.

2919.22(B)(6).

{¶14} Via Entry of March 29, 2017, this Court granted Appellant’s Rule 26(B)

application to reopen appeal. Appellant assigns as error on reopening,

I. THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE

JUVENILE SPECIFICATIONS FOR COUNT ONE, ILLEGAL

MANUFACTURE OF METHAMPHETAMINE, AND COUNT TWO,

ILLEGAL POSSESSION OF CHEMICALS FOR THE MANUFACTURE OF

METHAMPHETAMINE. FIFTH AND FOURTEENTH AMENDMENTS TO

THE U.S. CONSTITUTION; ARTICLE I, SECTION 16 OF THE OHIO

CONSTITUTION.

2 This Court also affirmed the trial court’s joinder of offenses, denial of Appellant’s motion in limine to exclude the testimony of an expert witness, and the trial court’s allowing evidence of Appellant’s past purchases of pseudoephedrine. Richland County, Case No. 15CA85 6

II. JOANNE BURNS WAS DEPRIVED OF HER RIGHT TO THE

EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN TRIAL

COUNSEL FAILED TO ARGUE THERE WAS INSUFFICIENT EVIDENCE

TO SUPPORT THE JUVENILE SPECIFICATIONS FOR COUNT ONE,

ILLEGAL MANUFACTURE OF METHAMPHETAMINE, AND COUNT

TWO, ILLEGAL POSSESSION OF CHEMICALS FOR THE

MANUFACTURE OF METHAMPHETAMINE IN HER RULE 29 MOTION

FOR ACQUITTAL. SIXTH AND FOURTEENTH AMENDMENTS, UNITED

STATES CONSTITUTION; SECTION 10, ARTICLE I, OHIO

III. BY FAILING TO ARGUE THAT THE STATE DID NOT PRESENT

SUFFICIENT EVIDENCE TO SUPPORT THE JUVENILE

SPECIFICATIONS AND FAILING TO ARGUE THAT TRIAL COUNSEL

WAS INEFFECTIVE, ORIGINAL APPELLATE COUNSEL PROVIDED MS.

BURNS WITH INEFFECTIVE ASSISTANCE, IN VIOLATION OF THE

FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION. APP. R.26(B)(7).

I.

{¶15} In the first assigned error, Appellant maintains her convictions on the two

attendant specifications to Counts One and Two, “within the vicinity of a juvenile”, were

not supported by the sufficiency of the evidence. Richland County, Case No. 15CA85 7

{¶16} The standard of review for a challenge to the sufficiency of the evidence is

set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two

of the syllabus, in which the Ohio Supreme Court held, “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.”

{¶17} Appellant was convicted on 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; and on 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.

{¶18} R.C. 2925.01(BB) defines “in the vicinity of a juvenile” as,

(BB) An offense is “committed in the vicinity of a juvenile” if the

offender commits the offense within one hundred feet of a juvenile or within

the view of a juvenile, regardless of whether the offender knows the age of

the juvenile, whether the offender knows the offense is being committed

within one hundred feet of or within view of the juvenile, or whether the

juvenile actually views the commission of the offense. Richland County, Case No. 15CA85 8

{¶19} Significantly, on direct appeal, this Court reversed Appellant’s convictions

for endangering children in Counts Three and Four, finding,

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.

Burns, supra, at ¶37.

{¶20} It is undisputed the children resided in the home herein. The children were

present at the time the officers arrived at the residence, and told police adults were not

present. The children were present during the time the officers searched the residence.

{¶21} Contrary to R.C. 2919.22(B)(6) defining the offense of endangering children

analyzed on direct appeal, the juvenile enhancement specifications do not necessarily

require proof the offense was committed within 100 feet of the juvenile.

{¶22} The Supreme Court in State v. Lozier, 101 Ohio St.3d 161, 803 N.E.2d 770,

2004-Ohio-732, held, Richland County, Case No. 15CA85 9

R.C. 2925.01(BB) makes it abundantly clear that the offender's

mental state is irrelevant in determining whether the offender has committed

an offense “in the vicinity of a juvenile.” An offender is liable whether or not

he knows the age of the juvenile, or whether he realizes that a juvenile is in

the vicinity.

***

The General Assembly, in imposing the strict liability requirement for

drug sales “in the vicinity of a juvenile,” perfectly illustrates what R.C.

2901.21(B) calls a “purpose to impose strict liability.” Additionally, the stark

contrast between the definition of “committed in the vicinity of a school” and

the definition of “committed within the vicinity of a juvenile” indicates that the

General Assembly did not intend to impose strict liability for selling LSD in

the “vicinity of a school” section.

The distance requirement for an act to be committed within “the

vicinity of a juvenile” is only 100 feet or “within view of the juvenile.” Drug

trafficking is a dangerous activity. Beyond the psychic danger of seeing

drugs being sold, there is a very real physical danger surrounding a drug

transaction, even for nonparticipants. Thus, a child, whether in view or not,

could become a part of the collateral damage of a failed transaction. The

threat to a child is real and imminent.

On the other hand, to be “in the vicinity of a school,” an offender

could, by definition, be 1,000 feet away from a school. A child may not Richland County, Case No. 15CA85 10

necessarily be nearby, or even in the school. The transaction could occur

in the late evening hours, or in summer, or during any other period of the

year that the school is closed.

The difference between the potential peril of a transaction that occurs

“in the vicinity of a school” and “in the vicinity of a juvenile” is significant. “In

the vicinity of a school” addresses danger that can be theoretical; “in the

vicinity of a juvenile” addresses a real, present danger. Because the “vicinity

of a juvenile” offense is so much more dangerous, the General Assembly

has determined that the offender's knowledge that a juvenile is nearby is

irrelevant. Also, since “in the vicinity of a juvenile” includes being in

view of a juvenile, its parameters can expand well beyond 100 feet.

Thus, if an offense occurs within 1,000 feet of a school, the offender still can

be subject to strict criminal liability if there is a juvenile within view. As the

danger to children becomes more real, the culpable mental state gets

stricter. (Emphasis added).

{¶23} In State v. Riel, 4th Dist. No. 08CA3, 2008-Ohio-5354, Riel was convicted of

trafficking in marijuana in the vicinity of a juvenile. The Fourth District held the presence

of at least two children in a church parking lot, across the street, sufficient evidence the

offense was committed “within the view” of a juvenile. The Court held,

Moreover, assuming arguendo that we have misunderstood Officer

Tilton's testimony, we nevertheless find sufficient evidence that the offense Richland County, Case No. 15CA85 11

was committed “within the view” of a juvenile. The statute does not require

that juveniles need to have actually observed the transaction. Id. Rather,

the transaction need only have occurred “within” their view. Although

nothing in the statute or case law explicitly sets out what the Ohio General

Assembly meant by the phrase “within” their view, it is logical to assume

that their intention is to proscribe transactions in locations where juveniles

could view the activity.

{¶24} In State v. Turner, 4th Dist. No. 08CA3234, 2009-Ohio-3114, the Fourth

District addressed the sufficiency of the evidence on appeal from a juvenile specification

conviction. Turner transported drugs from Columbus to Portsmouth, delivering them to

the home of Cindy Mershon, and eventually distributing the drugs to local dealers in the

Portsmouth area. Turner stayed at the Mershon residence and dealt crack cocaine and

heroin on at least three separate occasions. When officers searched the residence,

Turner was found in constructive possession of crack cocaine and heroin. The officers

observed Mershon’s nine year-old daughter leaving the residence immediately preceding

the execution of the search. Testimony established Mershon’s daughter and seventeen

year-old son lived at the residence.

{¶25} The Fourth District held the observation of a nine year-old girl leaving the

residence prior to the execution of the search warrant, which found drugs in the house,

and the juveniles’ residency in the home sufficient evidence to support Turner’s conviction

for the juvenile specification. Richland County, Case No. 15CA85 12

{¶26} In State v. Cunningham, 6th Dist. No. WD-08-063, 2009-Ohio-6970, the

Sixth District held,

The state's evidence in this case as to the presence of juveniles

consisted of background noise on the audiotapes that sounded like

children's voices. There also was evidence that the drug transactions

occurred at a residence in a mobile home park. Because children's voices

were heard and the transactions occurred in a residence, the jury could

reasonably have inferred that they took place “within the vicinity of a

juvenile” as defined in R.C. 2925.01(BB). Establishing the juvenile

enhancement elevates the degree of the offenses of which appellant was

found guilty.

{¶27} In a footnote referenced in our Opinion and Judgment Entry on direct appeal

in Burns, supra, we noted the State’s citation to State v. Smith, 3rd Dist. No. 6-14-14,

2015-Ohio-2977, for the proposition Ohio courts have held a juvenile’s presence in the

residence, despite no evidence the juvenile actually viewed the illegal manufacture or

cultivation, satisfies the sufficiency of the evidence where a 100 foot distance requirement

must be met. In our opinion in Burns, we found the State’s reliance on Smith misplaced,

as the State had the burden of proving the juvenile was within 100 feet of the meth lab

pursuant to the child endangering statute. Smith involved a juvenile enhancement

specification, as is the issue presented here. Richland County, Case No. 15CA85 13

{¶28} In Smith, a child was present at the time of execution of the search warrant.

The State presented evidence three juveniles resided at the residence. In the basement

of the home, officers found a small, boxed off room, framed in by wood, closed off with

cardboard and sealed with spray foam. Inside, Appellant cultivated marijuana for

trafficking. The Third District found the State proved both the offenses occurred within

1000 feet of a school and sufficient evidence the cultivation was done in the same house

where three juveniles resided. The court concluded the offense was within the vicinity of

a juvenile based solely on the juveniles residing in the home where the cultivation

occurred.

{¶29} The investigating officers herein testified at trial the basement door was

unlocked at the time of the search. The basement was accessible from the outside of the

home and from an entryway near the kitchen. The children were present when law

enforcement initially arrived at the residence, and were told no adults were home. The

children were again present when the search was conducted. State’s Exhibit 49

introduced at trial depicts the basement door located in the kitchen of the residence. The

picture indicates the stairs leading to the basement, with the meth lab in view.

{¶30} Based upon the evidence presented, we find the juvenile specifications

were supported by sufficient evidence and the jury reasonably found the specifications

proven beyond a reasonable doubt despite the lack of definite evidence the juveniles

were within 100 feet of the meth lab.

{¶31} The first assignment of error is overruled.

II. Richland County, Case No. 15CA85 14

{¶32} In the second assignment of error, Appellant maintains she was deprived of

the effective assistance of trial counsel due to counsel’s failure to argue the insufficiency

of evidence with regard to the juvenile specifications attendant to Counts One and Two.

{¶33} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio

adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538

N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for

ineffective assistance of counsel. First, we must determine whether counsel's assistance

was ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability

of the outcome of the trial is suspect. This requires a showing that there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different. Id.

{¶34} Trial counsel is entitled to a strong presumption that all decisions fall within

the wide range of reasonable professional assistance. State v. Sallie (1998), 81 Ohio

St.3d 673, 675, 693 N.E.2d 267. In addition, the United States Supreme Court and the

Ohio Supreme Court have held that a reviewing court “need not determine whether

counsel's performance was deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting

Strickland at 697, 104 S.Ct. 2052. Richland County, Case No. 15CA85 15

{¶35} Based upon our analysis and disposition of Appellant’s first assignment of

error, we find Appellant has not demonstrated prejudice as a result of any alleged error,

as the outcome of the trial would not have been different.

{¶36} The second assignment of error is overruled.

III.

{¶37} Based upon our March 29, 2017 Entry granting Appellant’s application to

reopen and in light of our analysis and disposition of Appellant’s first and second assigned

errors, we find Appellant has not demonstrated prejudice as a result of any alleged error

of appellate counsel, and has not met the second prong of Strickland, supra.

{¶38} The third assignment of error is overruled.

{¶39} The Judgment of the Richland County Court of Common Pleas is affirmed,

as it relates to the juvenile specifications on Counts One and Two.

By: Hoffman, P.J.

Wise, John, J. and

Wise, Earle, J. concur