State v. Fenton

2015 Ohio 5464

• Court: Ohio Court of Appeals
• Decided: December 28, 2015
• Docket: 2015-A-0011
• Status: Published

Opinion

[Cite as State v. Fenton, 2015-Ohio-5464.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2015-A-0011 - vs - :

AUTUMN E. FENTON, :

Defendant-Appellant. :

Criminal Appeal from the Ashtabula County Court of Common Pleas. Case No. 2014 CR 00362.

Judgment: Affirmed.

Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047-1092 (For Plaintiff-Appellee).

Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Defendant-Appellant).

TIMOTHY P. CANNON, P.J.

{¶1} Appellant Autumn E. Fenton appeals from the January 13, 2015 judgment

of the Ashtabula County Court of Common Pleas, following a jury trial, convicting and

sentencing her on four felony counts. For the following reasons, the judgment of the

trial court is affirmed.

{¶2} On July 10, 2014, appellant was indicted on four counts: Count 1, illegal

manufacture of drugs, a first-degree felony in violation of R.C. 2924.04(A) and (C)(3)(b); Count 2, illegal assembly or possession of chemicals for the manufacture of drugs, a

second-degree felony in violation of R.C. 2925.041(A)(C)(2); Count 3, endangering

children, a third-degree felony in violation of R.C. 2919.22(B)(6)(E)(3)(a); and Count 4,

aggravated possession of drugs, a second-degree felony in violation of R.C.

2925.11(A)(C)(1)(c).

{¶3} Appellant pled not guilty, and the case proceeded to a jury trial. The trial

judge instructed the jury on complicity as to all four counts of the indictment. The jury

found appellant guilty of all four counts. She was sentenced to four years in prison on

Count 1; three years in prison on Count 2; one year in prison on Count 3; and three

years in prison on Count 4. The trial court ordered the sentences to be served

concurrently with each other for a total of four years in prison.

{¶4} Appellant filed a timely notice of appeal and raises one assignment of

error with two issues:

{¶5} “The jury verdict is against the manifest weight of the evidence and the

sufficiency of the evidence.”

{¶6} When determining whether there is sufficient evidence presented to

sustain a conviction, “[t]he 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 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443

U.S. 307 (1979). Thus, the claim of insufficient evidence invokes a question of due

process, the resolution of which does not allow for a weighing of the evidence. State v.

Habo, 11th Dist. Portage No. 2012-P-0056, 2013-Ohio-2142, ¶14.

2 {¶7} To determine whether a verdict is against the manifest weight of the

evidence, a reviewing court must consider the weight of the evidence, including the

credibility of the witnesses and all reasonable inferences, to determine whether 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), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

In weighing the evidence submitted at a criminal trial, an appellate court must defer to

the factual findings of the trier of fact regarding the weight to be given the evidence and

credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one

of the syllabus.

{¶8} In order to convict appellant of the four counts in the indictment, the state

had to prove beyond a reasonable doubt that all of the following occurred on or between

October 1, 2013, and November 2, 2013:

{¶9} On Count One, Illegal Manufacture of Drugs, that appellant knowingly

manufactured or otherwise engaged in any part of the production of methamphetamine

and did so in the vicinity of juveniles. See R.C. 2925.04(A) & (C)(3)(b).

{¶10} On Count Two, Illegal Assembly or Possession of Chemicals for the

Manufacture of Drugs, that appellant knowingly assembled or possessed one or more

chemicals that may be used to manufacture methamphetamine with the intent to

manufacture methamphetamine and that she did so in the vicinity of juveniles. See

R.C. 2925.041(A) & (C)(2).

{¶11} On Count Three, Endangering Children, that appellant recklessly allowed

children under the age of 18 to be on the same parcel of real property and within 100

3 feet of any act in violation of R.C. 2925.04 or R.C. 2925.041 and that she knew the act

was occurring, even if no one was convicted of the R.C. 2925.04 or R.C. 2925.041

violation that is the basis of the endangering children violation. See R.C. 2919.22(B)(6)

& (E)(3)(a).

{¶12} On Count Four, Aggravated Possession of Drugs, that appellant knowingly

obtained, possessed, or used methamphetamine in an amount equal to or exceeding

five times the bulk amount, but less than fifty times the bulk amount. See R.C.

2925.11(A) & (C)(1)(c).

{¶13} Additionally, Ohio’s complicity statute states, in pertinent part: “No person,

acting with the kind of culpability required for the commission of an offense, shall * * *

[a]id or abet another in committing the offense[.]” R.C. 2923.03(A)(2). “Whoever

violates this section is guilty of complicity in the commission of an offense, and shall be

prosecuted and punished as if [she] were a principal offender. A charge of complicity

may be stated in terms of this section, or in terms of the principal offense.” R.C.

2923.03(F).

{¶14} Appellant argues there was insufficient evidence upon which the trier of

fact could reasonably conclude the elements of these offenses occurred within the time

frame of the indictment, i.e., on or between October 1, 2013, and November 2, 2013.

{¶15} The following evidence was adduced at appellant’s trial:

{¶16} Detective Sergeant Michael Colby testified the Conneaut City Police

Department received an anonymous tip of two men manufacturing methamphetamine at

a house on Orange Street in the city of Conneaut and children were living in the house.

Detective Sergeant Colby and Detective Sullivan patrolled Orange Street and began

4 watching 426 State Street, on the corner of Orange Street. The officers had reason to

believe, from the anonymous tip, that they would find Eric Osborne at this house.

Osborne had an active warrant in Conneaut for violating his probation from a previous

charge of illegally purchasing pseudoephedrine.

{¶17} On November 1, 2013, the officers parked in the driveway of the house;

Detective Sergeant Colby knocked on the rear door, and Detective Sullivan knocked on

the front door. Appellant and her boyfriend, Jeremy Shook, answered the rear door and

granted the officers permission to enter the house. They told the officers that Osborne

lived there but was not home, and Shook gave the officers permission to search the

house for Osborne.

{¶18} After the officers searched the first and second floors, Shook told them

that Eric Osborne stayed in the attic with his girlfriend, Tara Bond, and her three young

children. Detective Sergeant Colby entered the attic to search for Osborne; Bond and

the children were upstairs, but Osborne was not. The detective testified that the oldest

of Bond’s children was approximately 5 or 6 years of age, one was a toddler, and the

youngest was still in diapers.

{¶19} After exiting the attic, Shook took Detective Sergeant Colby aside and

informed him he had a methamphetamine lab in the basement. He also showed

Detective Sergeant Colby a plastic container on wheels that contained Drano, paper

towels, rags, coffee filters, and an empty sports bottle. Shook told the detective that he

used these items to manufacture methamphetamine.

{¶20} Detective Sergeant Colby then entered the basement through an unlocked

door. The detective located a cardboard box with a Mountain Dew bottle at the bottom

5 of the stairs. Shook indicated the bottle was a methamphetamine lab and also directed

the detective to multiple Gatorade bottles that he used as gas generators for the

production of methamphetamine.

{¶21} Detective Sergeant Colby called Patrolman Denny Moore, the police

department’s clandestine lab technician. The detective also turned the thermostat in the

house to its lowest setting and opened every door and window due to the combustible

hazards of a methamphetamine lab. Shook gave Detective Sergeant Colby written

permission to search the residence for additional methamphetamine lab components.

At no time did appellant object to the search.

{¶22} A search of the bedroom shared by Shook and appellant revealed drug

paraphernalia, pipes used in smoking marijuana and powdered narcotics, razor blades,

coffee filters, lithium batteries, needles, and pseudoephedrine pills. In the attic, the

detective found Bond’s identification card, drug paraphernalia, pipes, razor blades, and

a hollowed-out light bulb used for smoking narcotics. Another methamphetamine lab

and gas generator were also found in the attic.

{¶23} Two young girls also arrived at the house that afternoon after school and

identified themselves as appellant’s daughters. They were between approximately 12

and 14 years old.

{¶24} Patrolman Moore, the clandestine lab technician, testified that he

observed a methamphetamine lab in the basement and a box containing several

Gatorade bottles used as gas generators. He described this lab as “active” because it

was still bubbling and a chemical reaction was taking place. Patrolman Moore also

located an inactive methamphetamine lab in the attic of the house. He testified that he

6 filtered off methamphetamine oil from both the active and inactive labs. Detective

Sergeant Colby transported the oil, some powder, and coffee filters to the Bureau of

Criminal Identification and Investigation for testing. Stephanie Laux, a drug chemist

employed by BCI, testified that all of these items tested positive for methamphetamine.

She also testified that the oil amounted to 21.9 grams of methamphetamine: over five

times the bulk weight defined by statute (i.e., 3 grams).

{¶25} Detective Sergeant Colby also testified regarding the interviews he

conducted with Shook and appellant at the Conneaut Police Department. Shook told

the detective he had been cooking methamphetamine in the house for approximately

three months and that appellant was aware it was being manufactured in the house. He

also told the detective that appellant once purchased pseudoephedrine for him a couple

days before he “did a lab” and that she once held a funnel for him while he was draining

a bottle.

{¶26} Following Shook’s interview, Detective Sergeant Colby checked the

National Precursor Log Exchange to determine if and when appellant had purchased

pseudoephedrine. The NPLE revealed she made two such purchases in September

2013 and two in October 2013; the most recent purchase took place on October 24,

2013. Detective Sergeant Colby testified that Shook told him the last time he had

manufactured methamphetamine was on Halloween in October 2013.

{¶27} Appellant was also interviewed by Detective Sergeant Colby on November

12, 2013, the substance of which was introduced at trial. She told the detective she had

lived at 426 State Street since September 29, 2013. According to appellant, Shook and

Osborne started a methamphetamine lab in the attic of the house three weeks prior to

7 her statement, which would have been during the month of October 2013. She

indicated there were two or three methamphetamine labs in the attic and two in the

basement; a Mountain Dew bottle housed the labs and Gatorade bottles housed the gas

generators. Appellant told the detective there was an agreement in the household that

methamphetamine would not be manufactured while the children were in the home.

She admitted that she helped with one of the labs; that she purchased pseudoephedrine

for Shook to use in manufacturing methamphetamine; and that she was present when

Shook and Osborne were manufacturing.

{¶28} Shook also testified at appellant’s trial. He stated that he lived at 426

State Street with appellant until his incarceration for illegal manufacture of

methamphetamine. Shook testified that he permitted the officers to search the house

on November 1, 2013, and that no one living in the house objected to the search. He

also testified that appellant’s two children lived at the residence, approximately 13 and

14 years old, and that Osborne and Bond lived at the residence with Bond’s three young

children. Shook testified that all five children resided at the house the last time he

cooked methamphetamine, but that they were never present at the time of the cooks.

{¶29} Shook testified that appellant was aware he was manufacturing

methamphetamine in the home and that he had done so at least six times while she

was present. He stated the last time he cooked methamphetamine was on Halloween

2013 and appellant was present. He further testified that appellant purchased

pseudoephedrine for him on one occasion for use in the manufacture of

methamphetamine.

8 {¶30} Viewing this evidence in a light most favorable to the prosecution, we hold

that a rational jury could have found, beyond a reasonable doubt, that the elements of

each count occurred on or between October 1, 2013, and November 2, 2013. There

was sufficient evidence to support appellant’s convictions of illegal manufacture of

drugs, illegal assembly or possession of chemicals for the manufacture of drugs,

endangering children, and aggravated possession of drugs.

{¶31} Although mentioned in her assignment of error, appellant provides no

argument in support of her assertion that the convictions were against the manifest

weight of the evidence. Nevertheless, upon review of the evidence outlined above, we

find that the jury did not lose its way or create a manifest miscarriage of justice by

finding appellant guilty of all four counts.

{¶32} Appellant’s sole assignment of error is without merit.

{¶33} The judgment of the Ashtabula County Court of Common Pleas is

affirmed.

DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.