State v. Scoggins

2017 Ohio 8989

• Court: Ohio Court of Appeals
• Decided: December 8, 2017
• Docket: 16CA3767
• Status: Published

Opinion

[Cite as State v. Scoggins, 2017-Ohio-8989.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, : Case No. 16CA3767

Plaintiff-Appellee, :

v. : DECISION AND JUDGMENT ENTRY RONALD SCOGGINS, :

Defendant-Appellant. : RELEASED 12/8/2017

APPEARANCES:

John Rutan, Columbus, Ohio, for appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.

Hoover, J. {¶1} Defendant-appellant, Ronald Scoggins (“Scoggins”), appeals his convictions and

sentence for numerous drug related charges as well as one count of endangering children after a

search of a vehicle under his possession and control revealed several active one-pot

methamphetamine labs as well as additional materials used to produce methamphetamine. The

Scioto County Common Pleas Court denied Scoggins’s motion to suppress the evidence found as

a result of the search; and Scoggins was subsequently found guilty, following a jury trial, of the

charged offenses. Scoggins was sentenced to a total aggregate sentence of 22 years

imprisonment, with 19 years being mandatory.

{¶2} Because we determine that the trial court properly denied Scoggins’s motion to

suppress, and that Scoggins’s remaining assignments of error pertaining to his convictions and

sentence are also without merit, we affirm the judgment of the trial court. However, our own Scioto App. No. 16CA3767 2

review of the record reveals errors in two of the jury verdict forms and in the sentencing entry

constituting plain error; thus under App.R. 9(E) we instruct the trial court to issue a nunc pro

tunc sentencing entry correcting the errors described more thoroughly in this decision.

I. Facts and Procedural History1

{¶3} This case arose after officers from the Southern Ohio Drug Task Force and Scioto

County Common Pleas Adult Probation Department conducted a probation home check at a

property in Scioto County. Upon arriving to the property, the officers located a running vehicle

in the driveway. Inside the vehicle, in open view of the officers, was an active one-pot

methamphetamine lab. A more thorough search of the vehicle revealed a tool bag, which

contained two more active one-pot methamphetamine labs, two spent one-pot methamphetamine

labs, and various materials commonly used to produce methamphetamine. The vehicle, which

was unoccupied at the time of the officers’ arrival, contained Scoggins’s driver’s license and a

cell phone associated with Scoggins. Several individuals, including a minor child, were inside a

house on the property. Scoggins, however, was not located at the house or anywhere else on the

property.

{¶4} On May 12, 2015, Scoggins was indicted on four counts: aggravated trafficking of

methamphetamine in violation of R.C. 2925.03(A)(2) and R.C. 2925.03(C)(1)(f), a first degree

felony; aggravated possession of drugs/methamphetamine in violation of R.C. 2925.11(A) and

R.C. 2925.11(C)(1)(e), a first degree felony; illegal manufacture of drugs/methamphetamine in

the vicinity of a juvenile in violation of R.C. 2925.04(A) and R.C. 2925.04(C)(3)(a), a second

degree felony; and illegal assembly or possession of chemicals for the manufacture of

drugs/methamphetamine in the vicinity of a juvenile in violation of R.C. 2925.041(A) and R.C.

1 The evidence and testimony introduced at trial will be discussed in further detail below. Scioto App. No. 16CA3767 3

2925.041(C), a second degree felony. Scoggins pleaded not guilty to the charges. On May 23,

2016, Scoggins filed a motion to suppress the evidence seized as a result of the search of the

vehicle. After a hearing on the motion to suppress, the trial court overruled the motion.

{¶5} Following the trial court’s denial of the motion to suppress, but approximately a

month before the commencement of the scheduled trial, the State filed a superseding indictment.

The superseding indictment added that the aggravated trafficking of methamphetamine charge

was committed in the vicinity of a juvenile, and added a count of endangering children in

violation of R.C. 2919.22(B)(6) and R.C. 2919.22(E)(3), a third degree felony.

{¶6} Scoggins was tried before a jury on August 22 and 23, 2016. At the conclusion of

trial Scoggins was convicted of all the indicted charges. The jury also determined that the drugs

were equal to or exceeded 5 times the bulk amount and were less than 50 times the bulk amount,

and that the aggravated trafficking of methamphetamine, illegal manufacture of

drugs/methamphetamine, and the illegal assembly offenses were committed in the vicinity of a

juvenile. At sentencing, the trial court merged the aggravated trafficking and aggravated

possession counts with the illegal manufacture count. The trial court sentenced Scoggins to 11

years incarceration on the illegal manufacture count2, 8 years on the illegal assembly count, and

36 months on the endangering children count, to be served consecutively for a total aggregate

sentence of 22 years imprisonment with 19 years being mandatory.

{¶7} Shortly thereafter, a sentencing entry was journalized and Scoggins then filed a

timely notice of appeal.

II. Assignments of Error

2 At sentencing the trial court found that the illegal manufacture count shall be enhanced from a felony two to a felony one because of the finding that the offense was committed in the vicinity of a juvenile. See R.C. 2925.04(C)(3)(b) (“If the drug involved in the violation is methamphetamine and if the offense was committed in the vicinity of a juvenile * * * illegal manufacture of drugs is a felony of the first degree * * *.”) Scioto App. No. 16CA3767 4

{¶8} Scoggins assigns the following errors for our review:

First Assignment of Error:

The Trial Court Erred By Denying Appellant’s Motion to Suppress.

Second Assignment of Error:

The Appellant’s 6th Amendment Right To Fair And Impartial Jury Was Violated.

Third Assignment of Error:

The Trial Court Abused It’s Discretion And Committed Prejudicial Error In The Handling Of Numerous Criminal Rule 16 Violations Committed By The State By Not Excluding The Testimony Of James Cunningham And Payton Scott.

Fourth Assignment of Error:

The Trial Court Erred By Not Granting A Mistrial After Payton’s Prejudicial Statement And Prejudicial Questions By The Prosecutor.

Fifth Assignment of Error:

There Was Insufficient Evidence To Support Appellants Conviction For Count 1, Aggravated Possession, Count 2 Aggravated Trafficking Of Drugs And Count 5 Endangering Children.

Sixth Assignment of Error:

Appellant’s Conviction For Count 3 Illegal Manufacturing Of Drugs And The Enhancements For Counts 1, 3 and 4 Was Against The Manifest Weight Of The Evidence.

Seventh Assignment of Error:

The Trial Court Erred In Failing To Merge Appellants Sentences.

Eighth Assignment of Error:

The Trial Court Erred In Failing To Merge The Sentences of Child Endangerment With the Elevated Felonies.

Ninth Assignment of Error:

The Trial Court Abused Its Discretion In Sentencing The Appellant To A Near Maximum Prison Term And In Imposing Consecutive Terms. Scioto App. No. 16CA3767 5

III. Law and Analysis

A. First Assignment of Error: Motion to Suppress

{¶9} In his first assignment of error, Scoggins contends that the trial court erred in

overruling his motion to suppress evidence.

{¶10} Appellate review of a motion to suppress presents a mixed question of law and

fact. State v. Gurley, 2015-Ohio-5361, 54 N.E.3d 768, ¶ 16 (4th Dist.), citing State v. Roberts,

110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. At a suppression hearing, the trial

court acts as the trier of fact and is in the best position to resolve factual questions and evaluate

witness credibility. Id.; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,

¶ 8. Thus, when reviewing a ruling on a motion to suppress, we defer to the trial court’s findings

of fact if they are supported by competent, credible evidence. Gurley at ¶ 16, citing State v.

Landrum, 137 Ohio App.3d 718, 722, 739 N.E.2d 1159 (4th Dist.2000). However, “[a]ccepting

those facts as true, we must independently determine whether the trial court reached the correct

legal conclusion in analyzing the facts of the case.” Id., citing Roberts at ¶ 100.

{¶11} At the suppression hearing, Detective Lee Bower of the Southern Ohio Drug Task

Force testified that he responded to the Charles Wooten residence in McDermott, Ohio, to assist

other officers from the task force and officers from the Scioto County Common Pleas Adult

Probation Department. The purpose of the visit was to conduct a home visit on probationer

Payton Scott, who was residing at the Wooten residence.3 It had been reported that Scott was

abusing drugs at the residence, that methamphetamine was being produced at the residence, and

that anhydrous ammonia might be present at the residence. Detective Bower indicated that upon

3 Payton Scott and Charles Wooten are siblings. Scioto App. No. 16CA3767 6

arriving to the residence and looking for probationer Scott he observed a vehicle in the driveway

that was locked and running, but that contained no driver or passengers. Detective Bower

testified that he looked into the window of the vehicle and observed a one-pot methamphetamine

lab that was cooking in the center console of the vehicle. Detective Bower then approached the

residence and spoke to Wooten. According to Detective Bower, Wooten told him that the vehicle

belonged to Scoggins, and that Scoggins had just run away from the residence. Scott and a minor

child were also present in the residence, and according to Detective Bower’s testimony, Scott

also indicated that a person named “Ronnie” had just run out the door.

{¶12} Detective Bower testified that the fire department was called to the scene due to

the high risk of fire and explosion, and to break the driver’s side window to ventilate the vehicle.

Detective Bower testified that trained agents from the drug task force dressed in protective

equipment and began processing the scene. Once the one-pot lab was neutralized, a search of the

vehicle was conducted. According to Detective Bower two more active one-pot

methamphetamine labs, and two spent one-pot labs were discovered in a tool bag in the back seat

of the vehicle. In addition, Scoggins’s driver license and cell phone were also found in the

vehicle.

{¶13} Paula Breech, Scoggins’s girlfriend, also testified at the suppression hearing.

Breech testified that she is the titled owner of the vehicle, but that she regularly allows Scoggins

to use the vehicle. Breech testified that Scoggins was driving the vehicle on the day that it was

searched.

{¶14} Scoggins argues that the search of the vehicle was unlawful because it was

conducted without procurement of a warrant and in violation of the plain view doctrine. Scioto App. No. 16CA3767 7

{¶15} “ ‘The Fourth Amendment to the United States Constitution and the Ohio

Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.’ ” State v.

Shrewsberry, 4th Dist. Ross No. 13CA3402, 2014-Ohio-716, ¶ 14, quoting State v. Emerson, 134

Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 15. “The Fourth Amendment protects the

individual’s actual and justifiable expectation of privacy from the ear and eye of the

government.” State v. Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, 860 N.E.2d 1006, ¶ 13,

citing Smith v. Maryland, 442 U.S. 735, 740-741, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Katz v.

United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Accordingly, absent a

few well-delineated exceptions, the State is prohibited from making unreasonable intrusions into

areas where people have legitimate expectations of privacy without a search warrant. State v.

Bradford, 4th Dist. Adams No. 09CA880, 2010-Ohio-1784, ¶ 25, and cases cited therein.

{¶16} We begin by noting that “ ‘plain view’ is a term of art that has specific meaning in

the Fourth Amendment context.” Bradford at ¶ 35, citing Katz & Giannelli, Ohio Criminal Law

(2 Ed.), Section 16:3, “Plain View and open view distinguished.” “The plain view doctrine

applies to warrantless seizures, not warrantless searches. The open view doctrine applies where

an officer views an object that is not subject to a reasonable expectation of privacy. No search

occurs because the owner of the object has voluntarily exposed it to public view.” Id.; see also

State v. Johnson, 4th Dist. Athens No. 06CA34, 2007-Ohio-4662, ¶ 14 (“Generally, the police

are free to observe whatever may be seen from a place where they are entitled to be.”)

{¶17} As we explained in Bradford, supra, at ¶ 36 (citations omitted):

* * * When the police enter private property to conduct an investigation and they

restrict their movement to places where the public is expressly or implicitly

invited, they have not infringed upon any Fourth Amendment protection. In other Scioto App. No. 16CA3767 8

words, home owners normally have a limited expectation of privacy in their

driveway, sidewalk, doorstep, or other normal routes of access to the home. Even

in the home and areas surrounding it, the Fourth Amendment does not protect

what one readily exposes to the open view of others, regardless of where that

exposure takes place.

{¶18} Here, the law enforcement officers travelled to the Wooten residence to conduct a

probation home check and were lawfully present on the property.4 While in the driveway of the

residence, officers observed the running vehicle, peered inside, and observed the active one-pot

methamphetamine lab in open view. The officers were able to view the contents of the vehicle

from an area that was expressly or implicitly open to public access, ie, the driveway. Thus, the

incriminating evidence was in “open view” of the officers.

{¶19} It is important to note that “while the observation of something that is in ‘open

view’ does not amount to a search, this discovery does not justify a subsequent warrantless

seizure absent some specific exception to the warrant requirement.” Bradford at ¶ 36. Here,

however, exigent circumstances justified the warrantless search of the vehicle.

{¶20} Exigent circumstances are a specifically established and well-delineated exception

to the Fourth Amendment search warrant requirement. State v. Miller, 4th Dist. Gallia No.

12CA4, 2013-Ohio-691, ¶ 8. “[C]ertain situations present exigent circumstances that justify a

warrantless search. Generally, there must be ‘compelling reasons’ or ‘exceptional circumstances’

to justify an intrusion without a warrant.” State v. Moore, 90 Ohio St.3d 47, 52, 734 N.E.2d 804

4 Law enforcement is entitled to conduct a warrantless search of a probationer’s residence so long as reasonable suspicion exists that evidence of criminal activity can be found at the residence. State v. Johnson, 2014-Ohio-5400, 26 N.E.3d 243, ¶ 14 (4th Dist.); R.C. 2951.02(A). Here, the officers had reasonable grounds to believe that the probationer was residing at the Wooten residence, and that drug use and manufacturing was also occurring at the property. Scioto App. No. 16CA3767 9

(2000). 804, citing McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 93 L.Ed. 153

(1948).

{¶21} Regarding exigent circumstances arising from methamphetamine production

specifically, Ohio enacted R.C. 2933.33 which states:

(A) If a law enforcement officer has probable cause to believe that particular

premises are used for the illegal manufacture of methamphetamine, for the

purpose of conducting a search of the premises without a warrant, the risk of

explosion or fire from the illegal manufacture of methamphetamine causing injury

to the public constitutes exigent circumstances and reasonable grounds to believe

that there is an immediate need to protect the lives, or property, of the officer and

other individuals in the vicinity of the illegal manufacture.

This Court has previously determined that R.C. 2933.33(A) allows officers to conduct

warrantless searches when they have probable cause to believe methamphetamine production is

occurring. See State v. Robinson, 4th Dist. Lawrence No. 13CA18, 2015-Ohio-2635, ¶¶ 50-53.

{¶22} In the case sub judice, law enforcement officers observed an active one-pot

methamphetamine lab in the center console of the vehicle. This fact, along with the relevant

background information that brought them to the residence in the first place, constituted

sufficient probable cause that evidence of methamphetamine production would be found in the

vehicle. Accordingly, the search of the vehicle was supported by probable cause and the lack of a

search warrant was excused by the exigent circumstances and R.C. 2933.33(A).

{¶23} In sum, we conclude that law enforcement, while properly on the property,

observed in open view an active one-pot methamphetamine lab inside the vehicle. This Scioto App. No. 16CA3767 10

observation coupled with the information that methamphetamine was being used and

manufactured at the location, constituted probable cause that methamphetamine was being

produced in the vehicle. Furthermore, given the volatile and flammable nature of clandestine

methamphetamine labs and the enactment of R.C. 2933.33(A), we conclude that the warrantless

search of the vehicle was proper under the exigent circumstance exception to the warrant

requirement. Accordingly, the trial court did not err in overruling Scroggins’s motion to suppress

evidence, and Scroggins’s first assignment of error is overruled.

B. Second Assignment of Error: Juror Impartiality

{¶24} In his second assignment of error, Scoggins contends that he was denied his right

to a fair trial because he had to use peremptory challenges to remove four jurors who he asserts

should have been removed for cause. Scoggins argues that because he had to use peremptory

challenges in this way, he was denied the effective use of his challenges and was thus denied a

fair trial.

{¶25} In the case sub judice, Scoggins moved to strike five jurors for cause. When the

trial court refused to remove the jurors for cause, Scoggins used four of his five peremptory

challenges to remove four of the challenged jurors. The fifth peremptory challenge was used on a

juror that had not been previously challenged for cause. Scoggins then requested an additional

peremptory challenge to remove the remaining juror he had previously moved to strike for cause

(Juror Andrew Scott). The trial court refused to allow the additional peremptory challenge.

{¶26} In addressing a prejudice claim similar to Scoggins’s, the Ohio Supreme Court

stated as follows: Scioto App. No. 16CA3767 11

* * * [A]ny claim that the jury was not impartial is not focused on the juror

excused by the exercise of the peremptory challenge, but rather is focused on the

jurors who ultimately sat. Therefore, in order to state a constitutional violation in

this situation, the defendant must use all of his peremptory challenges and

demonstrate that one of the jurors seated was not impartial.

State v. Broom, 40 Ohio St.3d 277, 288, 533 N.E.2d 682 (1988), citing Ross v. Oklahoma, 487

U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).

{¶27} Here, Scoggins did exercise all of his peremptory challenges but he failed to

demonstrate that one of the jurors seated was not impartial. Although Scoggins challenged Juror

Andrew Scott for cause, and Scott was ultimately seated on the jury, the record does not support

Scoggins’s contention that Juror Scott was not impartial.

{¶28} During the course of voir dire it was learned that Juror Scott was a cousin of

Payton Scott, one of the State’s witnesses in this case.5 When questioned further, Juror Scott

indicated that he was “not real close” to Payton Scott and did not know about the case. Juror

Scott also stated that he could be fair and impartial despite his relation to Payton Scott, and that

he would not give her testimony any more weight than any other witness. After being challenged

for cause, Juror Scott again stated he could be fair and impartial.

{¶29} R.C. 2945.25(D) provides that a prospective juror may be challenged for cause if

they are “related by consanguinity or affinity within the fifth degree” to the victim of the crime,

the alleger, or to the defendant. “There is no [statutory] provision that a potential juror would be

disqualified for being related to a witness.” Nolan v. Conseco Health Ins. Co., 7th Dist. Jefferson

Nos. 07JE30 & 07JE31, 2008-Ohio-3332, ¶ 142. Furthermore, “[a] trial court has broad

5 Juror Scott may have also been a cousin of Charles Wooten, another one of the State’s witnesses. Scioto App. No. 16CA3767 12

discretion in determining a prospective juror’s ability to be impartial.” State v. Maxwell, 139

Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 94. Here, the trial court found based on Juror

Scott’s answers that he could be a fair and impartial juror. We think that conclusion is

reasonable.

{¶30} Thus, because Scoggins has failed to demonstrate that one of the seated jurors was

not impartial, we overrule his second assignment of error.

C. Third Assignment of Error: Alleged Discovery Violations

{¶31} In his third assignment of error, Scoggins contends that the trial court erred by

overruling his request to exclude the testimony of two of the State’s witnesses: James

Cunningham and Payton Scott. Specifically, Scoggins argues that the State violated Criminal

Rule 16 by failing to properly disclose the witnesses; by failing to disclose Scott’s prior felony

conviction; and by failing to produce Cunningham’s witness statement. Given these purported

violations, Scoggins argues that the witnesses’ testimony should have been excluded.

{¶32} The admission of evidence is within the sound discretion of the trial court. State v.

Jackson, 4th Dist. Washington No. 12CA16, 2013–Ohio–2628, ¶ 16; State v. Dixon, 4th Dist.

Scioto No. 09CA3312, 2010–Ohio–5032, ¶ 33, citing State v. Sage, 31 Ohio St.3d 173, 510

N.E.2d 343, (1987), paragraph two of the syllabus. An abuse of discretion involves more than an

error of judgment; it connotes an attitude on the part of the court that is unreasonable,

unconscionable, or arbitrary. Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd., 63 Ohio

St.3d 498, 506, 589 N.E.2d 24 (1992); Wilmington Steel Products, Inc. v. Cleveland Elec.

Illuminating Co., 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991). When applying the abuse of

discretion standard, a reviewing court is not free to merely substitute its judgment for that of the

trial court. In re Jane Doe 1, 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991), citing Berk v. Scioto App. No. 16CA3767 13

Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). Accord State v. Huff, 4th Dist.

Scioto No. 14CA3596, 2015-Ohio-5589, ¶ 12.

{¶33} Furthermore, the control of discovery and sanctions for violations of that process

are generally left to the discretion of the trial court. State v. Bennington, 4th Dist. Adams No.

12CA956, 2013–Ohio–3772, ¶ 28, citing State v. Craig, 4th Dist. Gallia No. 01CA8, 2002 WL

1666225, ¶ 33 (Mar. 26, 2002); see also State v. Otte, 74 Ohio St.3d 555, 563, 660 N.E.2d 711

(1996). Accord Huff, at ¶ 13.

1. James Cunningham

{¶34} Prior to James Cunningham taking the witness stand, Scoggins requested that the

trial court exclude his testimony because the State had allegedly not disclosed him as a witness

until a week prior to trial. Furthermore, Scoggins’s counsel represented to the trial court that he

had interviewed Cunningham and that Cunningham could not recollect pertinent dates relevant to

the case. Thus, Scoggins argued that his testimony should be excluded because he did not have

personal knowledge of the events. Finally, Scoggins argued that Cunningham had provided a

witness statement to law enforcement and that the statement had not been produced or presented

to the defense during the course of discovery. The trial court denied Scoggins’s request, and

Cunningham testified at trial.

{¶35} Crim.R. 16 imposes on the prosecutor a duty to disclose certain information upon

a proper discovery request made by the defendant and this includes discovery of witness names,

addresses, and records of criminal convictions. Crim.R. 16(I); Crim.R. 16(B)(2). The duty to

disclose information pursuant to a proper discovery request is continuous. Crim.R. 16(A).

Further, Crim.R. 16(L), which governs regulation of discovery, provides as follows: Scioto App. No. 16CA3767 14

(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.

{¶36} First, we note that the record does not demonstrate that Cunningham was only

disclosed to the defense a week before trial. Rather, the State filed a supplemental response to

discovery on August 4, 2016, which listed Cunningham as a witness and included his address.

Thus, Cunningham was disclosed two and half weeks prior to trial and a violation of Crim.R. 16

did not occur in this respect.

{¶37} Next, Scoggins argues that he was completely taken by surprise when

Cunningham took the stand at trial and made statements that contradicted statements he had

previously made to defense counsel during trial preparations. He argues that he was prejudiced

because the State never produced Cunningham’s written statement to the defense during

discovery, and he could have used the statement to impeach Cunningham’s credibility.

{¶38} Crim.R. 16(B)(7) requires the disclosure of “[a]ny written or recorded statements

by a witness in the state’s case-in-chief, or that it reasonably anticipates calling as a witness in

rebuttal.” However, a writing or recording is only a statement for purposes of Crim.R. 16 if the

witness prepared, signed, or adopted the statement; or if it is a substantially verbatim recital of

the witness’s statement written in a continuous, narrative form. State v. Cunningham, 105 Ohio

St.3d 197, 2004–Ohio–7007, 824 N.E.2d 504, ¶ 44; State v. Phillips, 4th Dist. Pickaway Nos. Scioto App. No. 16CA3767 15

89–CA–32 & 89 CA–33, 1992 WL 42790, *5 (Mar. 5, 1992); State v. Johnson, 62 Ohio App.2d

31, 403 N.E.2d 1003 (6th Dist.1978), paragraph one of the syllabus; State v. Moore, 74 Ohio

App.3d 334, 340, 598 N.E.2d 1224 (10th Dist.1991). Conversely, notes taken by a prosecutor,

which are not reviewed, adopted or signed by the witness, do not constitute discoverable

statements within the meaning of Crim.R. 16. State v. Henry, 37 Ohio App.3d 3, 523 N.E.2d 877

(6th Dist.1987), paragraph three of the syllabus. In fact, the Henry court concluded that

prosecutor notes of witness interviews are work product, not witness statements. Id. at 8. The

General Assembly has expressly declared work product non-discoverable under Crim.R. 16. See

Crim.R. 16(J)(1) (“The following items are not subject to disclosure under this rule: (1) Materials

subject to the work product protection. Work product includes, but is not limited to, reports,

memoranda, or other internal documents made by the prosecuting attorney or defense counsel, or

their agents in connection with the investigation or prosecution or defense of the case; * * *.”).

Moreover, the General Assembly has made clear that a document prepared by a person other

than the witness is not a witness statement unless “explicitly adopted by the witness.” Crim.R.

16(B)(6).

{¶39} Upon reviewing the record in the case sub judice, it is clear that the document at

issue contains the notes of a conversation between Cunningham, an assistant prosecutor, and an

investigator. This discussion during Cunningham’s trial preparation was not reduced to written

form prepared, adopted, or signed by Cunningham – and thus did not constitute a written

statement. Rather, the document contained attorney notes made during witness preparation and

was clearly work product expressly protected from disclosure.

{¶40} Even if we were to assume, arguendo, that the State’s failure to disclose the

document is in fact a Crim.R. 16 violation; we would still conclude that the trial court did not Scioto App. No. 16CA3767 16

abuse its discretion by denying Scoggins’s request to exclude the testimony. Prosecutorial

violations of Crim.R. 16 result in reversible error only when there is a showing that (1) the

violation was willful, (2) disclosure of the information prior to trial would have aided the

accused’s defense, and (3) the accused suffered prejudice. State v. Jackson, 107 Ohio St.3d 53,

2005–Ohio–5981, 836 N.E.2d 1173, ¶ 131; State v. Scott, 4th Dist. Adams No. 05CA809, 2006–

Ohio–3527, ¶ 16.

{¶41} Here, disclosure of the document prior to trial would not have aided Scoggins’s

defense. The State provided Scoggins with Cunningham’s name and contact information well in

advance of trial. The defense contacted Cunningham and conducted its own pretrial interview.

Plus, Scoggins had the opportunity to cross-examine Cunningham and to challenge the reliability

of his testimony by confronting Cunningham with his prior statements made at the pretrial

interview with defense counsel. In short, Scoggins has failed to indicate how prior knowledge of

the document would have aided his defense.

{¶42} In sum, the State did not violate Crim.R. 16 with regards to witness Cunningham.

Alternatively, even if a Crim.R. 16 violation did occur, it did not rise to the level of reversible

error. Therefore, the trial court’s decision to deny Scoggins’s request to exclude the testimony

was not an abuse of discretion.

2. Payton Scott

{¶43} Once Scott was on the witness stand, but prior to commencement of her

testimony, defense counsel objected stating: “I’m not sure who this is?” It also became clear that

defense counsel was unaware if Scott had a prior criminal record. Ultimately, Scott was

permitted to testify. On appeal, Scoggins contends that Scott’s testimony should have been Scioto App. No. 16CA3767 17

excluded because she was never properly disclosed as a potential witness and because her

criminal record was never properly disclosed in pretrial discovery.

{¶44} As discussed above, the State is required to disclose certain information upon a

proper discovery request made by the defendant and this includes discovery of witness names,

addresses, and records of criminal convictions. Crim.R. 16(I); Crim.R. 16(B)(2). Here, in its

very first response to defendant’s request for discovery, filed March 31, 2016, the State listed

Scott in its list of witnesses expected at trial. The disclosure included Scott’s address, and noted

that it was unknown whether she had a criminal record. Then, in a supplemental response to

discovery, filed August 16, 2016, the State again listed Scott as an intended witness. The

disclosure included an updated address, and also revealed that Scott had a prior conviction for

“Tampering w/ Evidence” in Scioto County, Ohio, Case Number 13CR431B. Thus, a review of

the record reveals that the State complied with Crim.R. 16 and made the required disclosures as

it pertains to Scott. Accordingly, the trial court did not abuse its discretion by denying

Scoggins’s request to exclude Scott’s testimony.

{¶45} Based on the foregoing, we overrule Scoggins’s third assignment of error.

D. Fourth Assignment of Error: Motion for Mistrial/Prior Bad Acts

{¶46} In his fourth assignment of error, Scoggins contends that the trial court erred by

denying his motion for a mistrial. Specifically, Scoggins argues that Scott and the prosecuting

attorney examining Scott made improper remarks regarding prior bad acts that were inadmissible

under Evid.R. 404(B).

{¶47} On direct examination, Scott testified that Scoggins visited the Wooten residence

“daily” so he could “use meth and cook meth”. She further testified that Scoggins and her

brother, Charles Wooten, would often make methamphetamine “[a]cross the street in the woods. Scioto App. No. 16CA3767 18

They always carried duffle bags.” On cross-examination, Scott clarified that she had also seen

the pair make methamphetamine “at the bottom of the driveway, [and] on the side of the house”,

and that they “carried bags back and forth across the street, and in the woods and to their cars.”

On re-direct, the prosecuting attorney phrased several questions with the lead “on the days they

made meth” or similar language. Defense counsel objected to the phrasing of those responses

and questions, but the trial court overruled the objections.

{¶48} After Scott was done testifying, and outside the presence of the jury, defense

counsel moved for a mistrial. He argued that Scott’s testimony that Scoggins and Wooten cook

meth daily was prejudicial. The trial court denied the motion. Now on appeal, Scoggins contends

that the trial court erred by denying his motion for a mistrial because the aforementioned

testimony of Scott, and the prosecutor’s remarks, were inadmissible prior bad acts evidence in

violation of Evid.R. 404(B).

{¶49} Whether or not to grant a mistrial is within the sound discretion of the trial court,

and its decision will not be reversed absent an abuse of that discretion. State v. Koon, 4th Dist.

Hocking No. 15CA17, 2016–Ohio–416, ¶ 26. “In general a mistrial should not be granted based

on an error or irregularity unless an accused’s substantial rights are adversely affected.” Id. at ¶

27.

{¶50} Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity therewith. It

may, however, be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Similarly, R.C.

2945.59 provides: Scioto App. No. 16CA3767 19

In any criminal case in which the defendant’s motive or intent, the absence of

mistake or accident on his part, or the defendant’s scheme, plan, or system in

doing an act is material, any acts of the defendant which tend to show his motive

or intent, the absence of mistake or accident on his part, or the defendant’s

scheme, plan, or system in doing the act in question may be proved, whether they

are contemporaneous with or prior or subsequent thereto, notwithstanding that

such proof may show or tend to show the commission of another crime by the

defendant.

{¶51} “Evid.R. 404 codifies the common law with respect to evidence of other acts of

wrongdoing. The rule contemplates acts that may or may not be similar to the crime at issue. If

the other act is offered for some relevant purpose other than to show character and propensity to

commit crime, such as one of the purposes in the listing, the other act may be admissible.

Another consideration permitting the admission of certain other-acts evidence is whether the acts

‘form part of the immediate background of the alleged act which forms the foundation of the

crime charged in the indictment’ and are ‘inextricably related’ to the crime.” (Citations

omitted.) State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 13,

quoting State v. Curry, 43 Ohio St.2d 66, 73, 330 N.E.2d 720 (1975). “Generally, evidence of

other acts is admissible if it is offered for a purpose other than to prove the character of a person

in order to show action in conformity with that character, Evid.R. 404(B), it is relevant when

offered for that purpose, Evid.R. 401, and the danger of unfair prejudice does not substantially

outweigh its probative value, Evid.R. 403.” State v. Kirkland, 140 Ohio St.3d 73, 2014–Ohio–

1966, 15 N.E.3d 818, ¶ 68, citing State v. Williams, 134 Ohio St.3d 521, 2012–Ohio–5695, 983

N.E.2d 1278, ¶ 20. Scioto App. No. 16CA3767 20

{¶52} Upon reviewing the record, we find that the trial court did not abuse its discretion

by denying Scoggins’s motion for a mistrial. Scoggins’s prior acts were at least arguably

admissible to prove intent and identity under Evid.R. 404(B). The testimony that Scoggins’s had

a history of producing methamphetamine at the Wooten residence, and often used a duffle or tool

bag to carry the methamphetamine lab and materials, is useful evidence in establishing the

identity of the perpetrator because they “form part of the immediate background of the alleged

act which forms the foundation of the crime charged in the indictment” and which are

“inextricably related to the alleged criminal act.” See State v. Lowe, 69 Ohio St.3d 527, 531, 634

N.E.2d 616 (1994). The testimony was also useful in establishing the identity of the perpetrator

because they established a modus operandi identifiable with Scoggins. See State v. Jamison, 49

Ohio St.3d 182, 552 N.E.2d 180 (1990), syllabus (“Other acts forming a unique, identifiable plan

of criminal activity are admissible to establish identity under Evid.R. 404(B).”); State v.

Smith, 49 Ohio St.3d 137, 141, 551 N.E.2d 190 (1990) (“ ‘Other acts’ may be introduced to

establish the identity of a perpetrator by showing that he has committed similar crimes and that a

distinct, identifiable scheme, plan, or system was used in the commission of the charged

offense.”); Lowe, paragraph one of the syllabus (“To be admissible to prove identity through a

certain modus operandi, other-acts evidence must be related to and share common features with

the crime in question.”) Here, the other acts evidence share common characteristics with the facts

of this case, such that, it is useful in identifying the perpetrator. For instance, Scott testified that

Scoggins commonly utilized the Wooten residence to manufacture methamphetamine, and that

he often used a tool bag to carry his methamphetamine making supplies. Furthermore, the

testimony is useful to prove Scoggins’s intent to commit the offenses charged. Finally, we Scioto App. No. 16CA3767 21

conclude that the danger of unfair prejudice did not substantially outweigh the probative value of

the evidence.

{¶53} In light of all of the foregoing, we find that the trial court did not err by denying

Scoggins’s motion for a mistrial. Scoggins’s fourth assignment of error is overruled.

E. Fifth Assignment of Error: Sufficiency of the Evidence

{¶54} In his fifth assignment of error, Scoggins contends that there is insufficient

evidence to support his convictions for aggravated possession of drugs/methamphetamine,

aggravated trafficking of methamphetamine, and endangering children.

{¶55} “When reviewing the sufficiency of the evidence, our inquiry focuses primarily

upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could

support a finding of guilt beyond a reasonable doubt.” State v. Davis, 4th Dist. Ross No.

12CA3336, 2013-Ohio-1504, ¶ 12. “The standard of review is whether, after viewing the

probative evidence and inferences reasonably drawn therefrom in the light most favorable to the

prosecution, any rational trier of fact could have found all the essential elements of the offense

beyond a reasonable doubt.” Id., citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). Therefore, when we review a sufficiency of the evidence claim in a criminal

case, we review the evidence in a light most favorable to the prosecution. State v. Hill, 75 Ohio

St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50

(1993). A reviewing court will not overturn a conviction on a sufficiency of the evidence claim

unless reasonable minds could not reach the conclusion the trier of fact did. State v. Tibbetts, 92

Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739

N.E.2d 749 (2001). Scioto App. No. 16CA3767 22

1. Aggravated Possession of Drugs/Methamphetamine and Aggravated Trafficking of

Methamphetamine

{¶56} Scoggins contends that there is insufficient evidence to convict him for

aggravated possession of methamphetamine, and aggravated trafficking of methamphetamine,

because all that was recovered by law enforcement was a liquid containing some amount of

methamphetamine; not methamphetamine in its raw, useable, or sellable form.

{¶57} It is undisputed that law enforcement discovered the one-pot methamphetamine

labs while the labs were still in the process of manufacturing methamphetamine. Thus, what was

recovered was a liquid substance. The liquid substance was delivered to the Ohio Bureau of

Criminal Investigation (“BCI”), where further testing confirmed that the liquid contained

methamphetamine. At trial, both law enforcement officers and a scientist from BCI testified the

liquid substance was not yet in its final, useable form.

{¶58} Scoggins was charged and found guilty of aggravated possession of

drugs/methamphetamine, in violation of R.C. 2925.11, which provides, in pertinent part: “(A) No

person shall knowingly obtain, possess, or use a controlled substance or a controlled substance

analog.” Furthermore, R.C. 2925.11(C)(1) reads: “If the drug involved in the violation is a

compound, mixture, preparation, or substance included in schedule I or II, with the exception of

marihuana, cocaine, L.S.D., heroin, hashish, and controlled substance analogs, whoever violates

division (A) of this section is guilty of aggravated possession of drugs. * * *.” Scoggins was also

charged and found guilty of aggravated trafficking of methamphetamine, in violation of R.C.

2925.03. R.C. 2925.03 provides, in pertinent part: “(A) No person shall knowingly do any of the

following: * * * (2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or

distribute a controlled substance or a controlled substance analog, when the offender knows or Scioto App. No. 16CA3767 23

has reasonable cause to believe that the controlled substance or a controlled substance analog is

intended for sale or resale by the offender or another person.” Furthermore, R.C. 2925.03(C)(1)

reads: “If the drug involved in the violation is a compound, mixture, preparation, or substance

included in schedule I or schedule II, with the exception of marihuana, cocaine, L.S.D., heroin,

hashish, and controlled substance analogs, whoever violates division (A) of this section is guilty

of aggravated trafficking in drugs. * * *.”

{¶59} Methamphetamine is defined in the Revised Code as “any salt, isomer, or salt of

an isomer of methamphetamine, or any compound, mixture, preparation, or substance containing

methamphetamine or any salt, isomer, or salt of an isomer of methamphetamine.” R.C.

2925.01(II). In Ohio, methamphetamine is treated as a Schedule II controlled substance. See R.C.

3719.41.

{¶60} Recently, the Eleventh District Court of Appeals was taxed with determining

whether a liquid precursor to methamphetamine is in fact methamphetamine as defined by Ohio

statutory law. See State v. Thomason, 11th Dist. Ashtabula No. 2016-A-0027, 2017-Ohio-7447.

In Thomason, the Eleventh District stated, in pertinent part:

R.C. 2925.01(I)(I) presupposes that, regardless of the conditional medium, a

compound, mixture, preparation, or substance must contain methamphetamine to

be considered, as a matter of law, methamphetamine. Although a precursor, by

definition, is the substance from which methamphetamine is formed, there was

still some amount of methamphetamine in the mixture. And, while the precursor

may not have been usable methamphetamine and its weight contributed to a more

elevated charge, the unambiguous language of R.C. 2925.01(I)(I) states that a

mixture or substance that contains methamphetamine is methamphetamine. The Scioto App. No. 16CA3767 24

precursor (qua mixture, substance, or preparation) seized during the search

contained some undisclosed amount of methamphetamine and, as a result, it is

methamphetamine as defined by the legislature. * * *

(Emphasis sic.) Id. at ¶ 33.

{¶61} We agree with our sister district that the unambiguous language of R.C.

2925.01(I)(I) states that a mixture or substance that contains methamphetamine is

methamphetamine as a matter of law. Accordingly, because the evidence in this case establishes

that the liquid recovered from the one-pot labs contained some amount of methamphetamine,

sufficient evidence existed to support the aggravated drug possession and aggravated drug

trafficking charges.

2. Endangering Children

{¶62} Scoggins also contends that there is insufficient evidence to support his

conviction for endangering children because he did not allow a person under the age of 18 to be

on the same parcel of real estate as the methamphetamine labs. We disagree.

{¶63} Scoggins was indicted and found guilty of endangering children in violation of

R.C. 2919.22(B)(6), which provides:

(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:

***

(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 Scioto App. No. 16CA3767 25

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.

{¶64} At trial, Scott, Wooten, and two law enforcement officers testified that Scott’s 7

month-old child was present in the Wooten residence at the time of the incident. Scott and

Wooten further testified that Scoggins was a daily visitor to the property, and knew that Scott’s

minor child also resided there. Furthermore, Scott testified that on the day of the incident

Scoggins ran through the residence just prior to the arrival of law enforcement, and had a brief

interaction with Scott who was with the child. Finally, “[t]he statute does not require the [S]tate

to prove [that defendant] had authority or the ability to control the child * * *.” State v. Burns,

2016-Ohio-7375, 72 N.E.3d 1068, ¶ 35 (5th Dist.). Accordingly, after viewing the evidence in

the light most favorable to the prosecution, there existed sufficient evidence for the trier of fact

to conclude that Scoggins allowed a minor child to be present on the property where the

methamphetamine labs were located.

{¶65} For the aforementioned reasons, Scoggins’s fifth assignment of error is overruled.

F. Sixth Assignment of Error: Manifest Weight of the Evidence

{¶66} In his sixth assignment of error, Scoggins contends that his conviction for the

illegal manufacture of methamphetamine is against the manifest weight of the evidence; and that

the vicinity of a juvenile enhancements placed upon the counts of aggravated trafficking of Scioto App. No. 16CA3767 26

methamphetamine, illegal manufacture of methamphetamine, and illegal assembly or possession

of chemicals for the manufacture of drugs are against the manifest weight of the evidence.

{¶67} “When an appellate court considers a claim that a conviction is against the

manifest weight of the evidence, the court must dutifully examine the entire record, weigh the

evidence, and consider the credibility of witnesses.” State v. Topping, 4th Dist. Lawrence No.

11CA6, 2012–Ohio–5617, ¶ 60. “The reviewing court must bear in mind, however, that

credibility generally is an issue for the trier of fact to resolve.” Id., citing State v. Issa, 93 Ohio

St.3d 49, 67, 752 N.E.2d 904 (2001); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus.

{¶68} “Once the reviewing court finishes its examination, the court may reverse the

judgment of conviction only if it appears that the fact-finder, when resolving the conflicts in

evidence, clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.” (Quotations omitted.) Id. “A reviewing

court should find a conviction against the manifest weight of the evidence only in the exceptional

case in which the evidence weighs heavily against the conviction.” (Quotations omitted.) Id. at ¶

61.

1. Illegal Manufacture of Methamphetamine

{¶69} Scoggins, in the case sub judice, was found guilty of the illegal manufacture of

methamphetamine in violation of R.C. 2925.04(A). R.C. 2925.04(A) states, in relevant part, as

follows: “No person shall * * * knowingly manufacture or otherwise engage in any part of the

production of a controlled substance.” Scoggins argues that there was not competent and credible

evidence to establish that the methamphetamine labs and associated materials belonged to him,

or that he otherwise engaged in the production of methamphetamine. Scioto App. No. 16CA3767 27

{¶70} In the case sub judice, there was clear evidence that three active one-pot

methamphetamine labs were present inside of the vehicle, as well as additional materials used to

manufacture methamphetamine. There was also testimony from Breech, Scoggins’s girlfriend,

that Scoggins was driving the vehicle in which the methamphetamine labs were discovered on

the day of the incident. Furthermore, both Scott and Wooten testified at trial that Scoggins

regularly drove the vehicle. Scott testified that the methamphetamine labs and chemicals found

in the vehicle belonged to Scoggins; and that Scoggins ran from the property just prior to law

enforcement’s arrival. Wooten testified that the tool bag, which contained two active one-pot

labs as well as materials used to manufacture methamphetamine, did not belong to him. Two law

enforcement officers testified that Scoggins’s wallet with his driver’s license, as well as a cell

phone belonging to Scoggins was also found inside the vehicle.

{¶71} Based on this evidence, we cannot say that the verdict here was against

the manifest weight of the evidence. The State presented credible evidence that Scoggins had a

possessory interest over the vehicle and its contents and that he was inside of the vehicle on the

day in question. Thus, the evidence, if believed, could convince reasonable jurors that Scoggins

was responsible for manufacturing the methamphetamine.

{¶72} We recognize that Scott and Wooten testified that they are drug users with

criminal records. We also recognize that they may have had an incentive to testify in this case.

Nonetheless, Scott’s and Wooten’s credibility was a matter for the jury to decide. See State v.

Fisher, 4th Dist. Jackson No. 11CA10, 2012-Ohio-6260, ¶ 9 (“[T]he weight of the evidence and

witness credibility are issues that the trier of fact must determine. * * * The rationale for this

view is that the trier of fact * * * is in the best position to view the witnesses and to observe their

demeanor, gestures and voice inflections and to use those observations to weigh credibility. * * * Scioto App. No. 16CA3767 28

Consequently, a jury may choose to believe all, part or none of the witness testimony.”) The jury

apparently found Scott’s and Wooten’s testimony, or at least portions of it, to be credible. Even

if the jury did not find this testimony to be credible, more than enough evidence exists to support

the verdict. In other words, we do not believe that the evidence adduced at trial weighs heavily

against the conviction for the illegal manufacture of methamphetamine, or that the jury clearly

lost its way.

2. Vicinity of a Juvenile Enhancement

{¶73} As to the vicinity of a juvenile enhancement, Scoggins contends that the State

failed to put forth credible evidence that the offenses were committed within 100 feet of a

juvenile.

{¶74} As previously indicated, the jury determined that the aggravated trafficking of

methamphetamine, illegal manufacture of methamphetamine, and the illegal assembly offenses

were committed in the vicinity of a juvenile. These offenses allow for the enhancement of the

specified felony level if the offense occurs in the vicinity of a juvenile. See R.C.

2925.03(C)(1)(b)-(d); R.C. 2925.04(C)(3)(b); R.C. 2925.041(C).

{¶75} An offense is committed in the vicinity of a juvenile when 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.” R.C. 2925.01(BB). A “juvenile” is

defined as “a person under eighteen years of age.” R.C. 2925.01(N).

{¶76} Here, two law enforcement officers testified at trial that they estimated the vehicle

with the active one-pot methamphetamine labs to be no more than 50 feet from the residence in Scioto App. No. 16CA3767 29

which the minor child was present. The State also admitted as evidence photographs of the

scene, including one photograph showing the vehicle and the residence; thus allowing the jury to

reach its own conclusion regarding distance. There was also no evidence contradicting the

estimates made by law enforcement.

{¶77} Based upon the evidence presented, we find that the jury’s determinations

regarding the juvenile enhancements were supported by sufficient evidence and the jury

reasonably found the enhancements proven beyond a reasonable doubt.

{¶78} Scoggins’s sixth assignment of error is overruled.

G. Seventh and Eighth Assignments of Error: Merger Doctrine

{¶79} Given the similarity of the arguments, we will consider Scoggins’s seventh and

eighth assignments of error jointly. In his seventh assignment of error, Scoggins contends that

the trial court erred when it failed to merge the offense of illegal manufacture of

methamphetamine with the offense of illegal assembly or possession of chemicals for the

manufacture of drugs. He argues that it is impossible to manufacture methamphetamine without

possessing the materials to do it, and that he was not alleged to have committed the offenses on

separate days, locations, or times. In his eighth assignment of error, Scoggins contends that the

trial court erred by failing to merge the endangering children offense with the offenses of

aggravated trafficking, illegal manufacture of methamphetamine, and illegal assembly or

possession of chemicals for the manufacture of drugs, which all included a juvenile

enhancement. Scoggins timely made these arguments during his sentencing hearing, but the trial

court ultimately determined that only the aggravated trafficking and aggravated possession

counts merged with the illegal manufacture count. Thus, the trial court issued separate sentences

on the illegal manufacture count, the illegal assembly count, and the endangering children count. Scioto App. No. 16CA3767 30

{¶80} “An appellate court should apply a de novo standard of review in reviewing a trial

court’s R.C. 2941.25 merger determination.” State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-

5699, 983 N.E.2d 1245, ¶ 28. “ ‘[T]he appellate court must * * * independently determine,

without deference to the conclusion of the trial court, whether the facts satisfy the applicable

legal standard.’ ” Id. at ¶ 26, quoting Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, at ¶ 8. The reviewing court owes no deference to the trial court’s application of the

law to the particular facts of the case being reviewed. Id.

{¶81} R.C. 2941.25, Ohio’s multiple counts statute, provides:

(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.

{¶82} The statute codifies the protections of the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution, and Section 10, Article I of the Ohio Constitution,

which prohibits the imposition of multiple punishments for the same offense. State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. In other words, upon

finding one or more counts to constitute two or more allied offenses of similar import, R.C.

2941.25(A) requires that the convictions be merged for the purposes of sentencing and that the Scioto App. No. 16CA3767 31

defendant only be sentenced on one of the counts. State v. Whitfield, 124 Ohio St.3d 319, 2010-

Ohio-2, 922 N.E.2d 182, ¶ 5.

{¶83} The Ohio Supreme Court 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.

1. Whether the illegal assembly or possession of chemicals count should have merged with

the illegal manufacture of methamphetamine count for purposes of sentencing

{¶84} This Court has recently addressed this issue in State v. Evans-Goode, 4th Dist.

Meigs No. 15CA10, 2016-Ohio-5361. Evans-Goode is a case involving charges of illegal

assembly or possession of chemicals, as well as manufacturing of methamphetamine, which

stemmed from a single encounter with law enforcement. Id. at ¶ 34. In Evans-Goode, we

concluded that the two counts did not merge where the record indicated that “law enforcement

found an abundance of additional ingredients scattered throughout the residence ‘over and

above’ what was used for the * * * cook.” Id. at ¶ 31.

{¶85} Similar to the facts before us in Evans-Goode, supra, the record evidence in the

case sub judice indicates that while three active one-pot methamphetamine labs were found in

the vehicle, various precursor items used in the manufacture of methamphetamine were also Scioto App. No. 16CA3767 32

present in the vehicle in an amount over and above what was used in the three labs. Specifically,

law enforcement officers who conducted the search of the vehicle clearly testified that the

vehicle contained quantities of chemicals over and above those used in the manufacture of the

three one-pots that were located in the vehicle.

{¶86} Detective Sergeant Joshua Justice of the Southern Ohio Drug Task Force testified

that the vehicle contained a full container of Coleman camp fuel, a container of lye that was a

quarter full, a container of liquid drain cleaner that was halfway full, a container of rock salt that

was a quarter full, three full containers of starting fluid, coffee filters, plastic tubing, and three

instant cold packs. Detective Sergeant Justice further testified that these materials are used to

manufacture methamphetamine, and that the active one-pots found in the vehicle were past the

stage of needing all these materials except for the rock salt and the liquid drain cleaner. Detective

Bower testified similarly.

{¶87} We conclude that the record evidence indicates that Scoggins was in possession of

several materials used to manufacture methamphetamine over and above the quantities used in

the methamphetamine manufactured by the three active one-pots. Thus, we conclude that the

offenses at issue were committed with a separate animus and are not allied offenses of similar

import subject to merger. As such, we cannot conclude that the trial court erred by failing to

merge the offense of illegal manufacture of methamphetamine with the offense of illegal

assembly or possession of chemicals for the manufacture of drugs for the purposes of sentencing.

2. Whether the endangering children count should have merged with the remaining counts

for purposes of sentencing

{¶88} In his eighth assignment of error, Scoggins argues that because the offenses for

the illegal manufacture of methamphetamine, the illegal assembly or possession of chemicals, Scioto App. No. 16CA3767 33

and aggravated trafficking of methamphetamine were enhanced by the fact that they were

committed in the vicinity of a juvenile, the offense of endangering children should be merged

with those offenses for purposes of sentencing. In other words, he argues that he was punished

multiple times for the same conduct because the element enhancing his illegal manufacture of

methamphetamine offense, illegal assembly offense, and aggravated trafficking of

methamphetamine offense to higher degree felonies – the drug involved is methamphetamine

and the offense was committed in the vicinity of a juvenile – also resulted in his offense of

endangering children. We disagree.

{¶89} This Court has previously held that: “[W]hen the drug is methamphetamine and

the offense is committed in the vicinity of a juvenile, the General Assembly intended that a

defendant convicted of illegal manufacture of drugs could also be convicted of endangering

children and sentenced for both crimes.” State v. Greer, 4th Dist. Jackson No. 13CA2, 2014-

Ohio-2174, ¶ 2. In Greer, we noted that an analysis of whether the offenses of illegal

manufacture of drugs and endangering children were allied offenses of similar import was

unnecessary because the endangering children statute clearly indicated the legislature’s intent to

allow multiple punishments for violations of that statute and the offense of illegal manufacturing

of drugs when the drug is methamphetamine and the offense was committed within 100 feet of a

child. Id. at ¶¶ 10-11; see also State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d

603, ¶ 10 (saying that it is not necessary to apply the allied offense test when the legislature’s

intent is clear from the language of the statute).

{¶90} R.C. 2925.04(A) prohibits any person from knowingly manufacturing or

otherwise engaging in any part of the production of a controlled substance. If the drug involved

is methamphetamine, the offense of illegal manufacture of drugs is a felony of the first degree “if Scioto App. No. 16CA3767 34

the offense was committed in the vicinity of a juvenile, in the vicinity of a school, or on public

premises.” R.C. 2925.04(C)(3)(b). Likewise, R.C. 2925.041(A) prohibits any person from

knowingly assembling or possessing one or more chemicals that may be used to manufacture a

schedule I or II controlled substance with the intent to manufacture. The offense of illegal

assembly or possession of chemicals for the manufacture of drugs is a felony of the second

degree “[i]f the offense was committed in the vicinity of a juvenile or in the vicinity of a school *

* *.” R.C. 2925.041(C). Furthermore, if the offense of illegal assembly or possession of

chemicals for the manufacture of drugs is a felony of the second degree and the chemical or

chemicals assembled or possessed in committing the violation may be used to manufacture

methamphetamine, the court must impose a mandatory prison term. R.C. 2925.041(C)(2).

{¶91} R.C. 2919.22, which defines the offense of endangering children, specifies in

subdivision (B) that “[n]o 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: * * * (6) Allow

the child to be on the same parcel of real property 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 for the violation of this division.

(Emphasis added.)

{¶92} The plain language of R.C. 2919.22(B)(6) authorizes an endangering children

conviction regardless of whether the same conduct also results in a conviction for illegal

manufacture of drugs under R.C. 2925.04 or illegal assembly or possession of chemicals for the

manufacture of drugs under R.C. 2925.041. See Greer at ¶ 14. “These specific provisions were

legislatively adopted in S.B. 58, effective August 2004, after the legislative adoption of the Scioto App. No. 16CA3767 35

general merger provision of R.C. 2941.25(A).” Id. “Insofar as these detailed provision conflict

with the general provision in R.C. 2941.25(A), R.C. 2919.22(B)(6), [R.C. 2925.041] and 2925.04

prevail.” Id., citing Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943

N.E.2d 522, ¶ 26, and Chesapeake Exploration, L.L.C. v. Oil & Gas Comm., 135 Ohio St.3d 204,

2013-Ohio-224, 985 N.E.2d 480, ¶ 18.

{¶93} Thus, based on our prior holdings and statutory interpretation, we conclude that

the General Assembly intended that a defendant convicted of illegal manufacture of

methamphetamine in the vicinity of a juvenile and/or illegal assembly or possession of chemicals

for the manufacture of methamphetamine in the vicinity of a juvenile could also be convicted of

endangering children and sentenced for both crimes. Therefore, the multiple punishments in this

case do not violate the constitutional prohibition against double jeopardy or the provisions of the

Ohio allied offenses statute. Finally, we need not address whether merger of the endangering

children offense and the aggravated trafficking of methamphetamine offense is appropriate,

because Scoggins was not sentenced on the aggravated trafficking of methamphetamine offense.

{¶94} Based on the foregoing, Scoggins’s seventh and eighth assignments of error are

overruled.

H. Ninth Assignment of Error: Felony Sentencing

{¶95} In his ninth assignment of error, Scoggins contends that the trial court erred in

sentencing him. Specifically, he argues “the trial court erred in imposing consecutive prison

terms amounting to twenty-two (22) years out of a possible twenty-five (25)”.

{¶96} When reviewing felony sentences, we apply the standard of review set forth

in R.C. 2953.08(G)(2). State v. Brewer, 2014–Ohio–1903, 11 N.E.3d 317, ¶ 33 (4th Dist.) (“we

join the growing number of appellate districts that have abandoned the Kalish plurality’s second Scioto App. No. 16CA3767 36

step abuse-of-discretion standard of review; when the General Assembly

reenacted R.C. 2953.08(G)(2), it expressly stated that ‘[t]he appellate court’s standard of review

is not whether the sentencing court abused its discretion’ ”); see also State v. Graham, 4th Dist.

Highland No. 13CA11, 2014–Ohio–3149, ¶ 31. R.C. 2953.08(G)(2) specifies that an appellate

court may increase, reduce, modify, or vacate and remand a challenged felony sentence if the

court clearly and convincingly finds either that “the record does not support the sentencing

court’s findings” under the specified statutory provisions or “the sentence is otherwise contrary

to law.”

{¶97} Here, it appears that the sentences Scoggins received were within the statutory

range for each offense, thus it cannot be said that the length of the sentences are contrary to law.

Further, with respect to the trial court’s decision to order the sentences be served consecutively,

under the tripartite procedure set forth in R.C. 2929.14(C)(4) for imposing consecutive

sentences, the trial court had to find that (1) consecutive sentences are necessary to protect the

public from future crime or to punish the offender; (2) consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses

to the public; and (3) that one of three circumstances specified in the statute applies. See

generally State v. Baker, 4th Dist. Athens No. 13CA18, 2014–Ohio–1967, ¶¶ 35–36. The trial

court is required to make these findings at the sentencing hearing and to incorporate its findings

in its sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.3d 659,

syllabus. “The trial court need not use talismanic words to comply with R.C. 2929.14(C)(4), but

it must be clear from the record that the trial court actually made the required findings.” State v.

Campbell, 4th Dist. Adams No. 13CA969, 2014–Ohio–3860, ¶ 25. Scioto App. No. 16CA3767 37

{¶98} Furthermore, the trial court does not have any obligation under R.C.

2929.14(C)(4) to state reasons to support its findings to impose consecutive sentences. Bonnell at

syllabus (“In order to impose consecutive terms of imprisonment, a trial court is required to

make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its

findings into its sentencing entry, but it has no obligation to state reasons to support its

findings”).

{¶99} With the foregoing in mind, we reject Scoggins’s assertion that consecutive

sentences were unwarranted. Here, the trial court’s sentencing entry stated that it had considered

the principles and purposes of sentencing under R.C. 2929.11(A)(B) and (C), had considered and

balanced the seriousness and recidivism factors under R.C. 2929.12(B)–(E), had considered the

factors in R.C. 2929.13, and had found a presumption in favor of prison. The trial court further

found, correctly, that the convictions for the illegal manufacture of methamphetamine, in the

vicinity of a juvenile, and illegal assembly or possession of materials for the manufacture of

methamphetamine, in the vicinity of a juvenile, required mandatory prison sentences. Finally, the

trial court expressly found at the sentencing hearing, and in its sentencing entry, (1) that

consecutive sentences were necessary to protect the public from future crime or to punish the

offender; (2) that consecutive sentences were not disproportionate to the seriousness of the

offender’s conduct and to the danger the offender poses to the public; and (3) that the

defendant’s criminal history shows that consecutive terms are needed to protect the public from

future crime by the defendant. Thus, the trial court made the required findings before imposing

consecutive sentences and further, the trial court was under no obligation to state its reasons for

making its findings. Scioto App. No. 16CA3767 38

{¶100} In short, the trial court considered all of the pertinent statutes, balanced all of the

pertinent factors, and made all of the necessary findings before imposing consecutive sentences.

Accordingly, we cannot conclude that the imposition of consecutive sentences was contrary to

law or unsupported by the record. Scoggins’s ninth assignment of error is overruled.

I. Plain Error - Verdict Forms and Sentencing Entry

{¶101} After reviewing the record, we have discovered a matter that must be addressed

related to the verdict forms and sentencing entry. Specifically, as will be more fully discussed,

infra, the two verdict forms relating to the offenses of aggravated trafficking of

methamphetamine and aggravated possession of drugs/methamphetamine, and the sentencing

entry memorializing the jury’s findings on those offenses, incorrectly state the degree of the

offenses. As such, we have decided to sua sponte invoke the “plain error” rule. Crim.R.

52(B) states that although a defendant may have failed to raise a timely objection to an error

affecting a substantial right, courts may notice the error.

{¶102} For a reviewing court to find plain error: (1) there must be an error, i.e., “a

deviation from a legal rule”; (2) the error must be plain, i.e., “an ‘obvious’ defect in the trial

proceedings”; and (3) the error must have affected “substantial rights,” i.e., it must have affected

the outcome of the proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

Furthermore, the Ohio Supreme Court has admonished courts that notice of plain error

under Crim.R. 52(B) is to be taken “ ‘with the utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice.’ ” Id., quoting State v. Long, 53 Ohio St.2d

91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶103} R.C. 2945.75(A)(2) provides: Scioto App. No. 16CA3767 39

When the presence of one or more additional elements makes an offense one of

more serious degree: * * * A guilty verdict shall state either the degree of the

offense of which the offender is found guilty, or that such additional element or

elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of

the least degree of the offense charged.

See also State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, syllabus (“[A]

verdict form signed by a jury must include either the degree of the offense of which the

defendant is convicted or a statement that an aggravating element has been found to justify

convicting a defendant of a greater degree of criminal offense.”). Similarly, when a verdict form

includes some aggravating elements, but not others, a defendant may only be convicted of the

least degree of the offense including those elements in the verdict form. See State v. Ligon, 179

Ohio App.3d 544, 2008-Ohio-6085, 902 N.E.2d 1011, ¶ 20 (3d Dist.).

{¶104} Here, the first verdict form at issue reads: “We, the jury, having been duly

impaneled, find beyond a reasonable doubt, the defendant, Ronald Scoggins, Guilty of Count 1

of the indictment, Aggravated Trafficking of Methamphetamine, a violation of Ohio Revised

Code Section 2925.03(A)(2), 2925.03(C)(1)(f).” The verdict form further reads: “We, the jury,

further find beyond a reasonable doubt the drugs were: * * * Equal to or exceeding 5 times the

bulk amount and less than 50 times the bulk amount. We, the jury further find beyond a

reasonable doubt that the offense was * * * committed in the vicinity of a juvenile.” The second

verdict form reads: “We, the jury, having been duly impaneled, find beyond a reasonable doubt,

the defendant, Ronald Scoggins, Guilty of Count 2 of the indictment, Aggravated Possession of

Drugs/Methamphetamine, a violation of Ohio Revised Code Section 2925.11(A),

2925.11(C)(1)(e), a felony of the first degree.” The verdict form further reads: “We, the jury, Scioto App. No. 16CA3767 40

further find beyond a reasonable doubt that the weight of the drugs were: * * * Equal to or

exceeding 5 times bulk amount but less than 50 times bulk amount[.]”

{¶105} Likewise, the trial court’s sentencing entry states as follows:

The Court finds that the defendant pleaded not guilty and that the defendant has

been convicted by the jury of Count 1: Aggravated Trafficking of

Methamphetamine, in violation of Ohio Revised Code Section 2925.03 (A)(2),

2925.03 (C)(1)(f), a felony of the first degree. The Court finds that the Jury after

due deliberation found beyond a reasonable doubt that the drugs were equal to or

exceeding 5 times bulk amount and less than 50 times bulk amount. The

Court finds that the Jury after due deliberations further found the offense was

committed in the vicinity of a juvenile. Count 2: Aggravated Possession of

Drugs/Methamphetamine, in violation of Ohio Revised Code Section 2925.11

(A), 2925.11 (C)(1)(e), a felony of the first degree. The Court finds that the Jury

after due deliberation found beyond a reasonable doubt that the weight of the

drugs were equal to or exceeding 5 times the bulk amount but less than 50

times bulk amount. * * *

(Emphasis sic.)

{¶106} Here, with regards to the aggravated trafficking of methamphetamine count

(Count 1), the weight range the jury selected on the verdict forms supports a finding of guilt

under R.C. 2925.03(A)(2) / 2925.03(C)(1)(d); not under R.C. 2925.03(C)(1)(f) as stated in the

verdict form and on the sentencing entry.6 However, because the verdict form also includes a

6 R.C. 2925.03(C)(1)(d) provides: “[I]f the amount of the drug involved equals or exceeds five times the bulk amount but is less than fifty times the bulk amount, aggravated trafficking in drugs is a felony of the second degree * * *.” R.C. 2925.03(C)(1)(f) provides: “If the amount of the drug involved equals or exceeds one hundred times the bulk amount * * * aggravated trafficking in drugs is a felony of the first degree * * *.” Scioto App. No. 16CA3767 41

finding that the offense was committed in the vicinity of a juvenile, the offense is ultimately a

felony of the first degree. See R.C. 2925.03(C)(1)(d) (“If the amount of the drug involved is

within that range and if the offense was committed in the vicinity of a school or in the vicinity of

a juvenile, aggravated trafficking in drugs is a felony of the first degree, and the court shall

impose as a mandatory prison term one of the prison terms prescribed for a felony of the first

degree.”) However, a distinction between a finding of guilt under R.C. 2925.03(C)(1)(d) and

R.C. 2925.03(C)(1)(f) is still necessary in this case, because a finding of guilt under R.C.

2925.03(C)(1)(f) requires that the defendant be classified as a major drug offender, whereas a

conviction under R.C. 2925.03(C)(1)(d) does not. Compare R.C. 2925.03(C)(1)(d) to R.C.

2925.03(C)(1(f).

{¶107} Likewise, with regards to the aggravated possession of drugs/methamphetamine

count (Count 2), the weight range the jury selected on the verdict form supports a finding of guilt

under R.C. 2925.11(A) / 2925.11(C)(1)(c); not under R.C. 2925.11(C)(1)(e) as stated in the

verdict form and on the sentencing entry.7 Thus, the weight range the jury selected on the verdict

form includes the range for a second-degree felony, not a first-degree felony as reflected in the

sentencing entry.

{¶108} The jury clearly found that Scoggins trafficked in and possessed

methamphetamine in an amount that equals or exceeds five times the bulk amount but is less

than fifty times the bulk amount. Therefore, Scoggins could only be convicted and sentenced

under R.C. 2925.03(C)(1)(d) and R.C. 2925.11(C)(1)(c), i.e., the least degree of the offenses

covered by the verdict forms.

7 R.C. 2925.11(C)(1)(c) provides: “If the amount of the drug involved equals or exceeds five times the bulk amount but is less than fifty times the bulk amount, aggravated possession of drugs is a felony of the second degree * * *.” R.C. 2925.11(C)(1)(e) provides: “If the amount of the drug involved equals or exceeds one hundred times the bulk amount, aggravated possession of drugs is a felony of the first degree * * *.” Scioto App. No. 16CA3767 42

{¶109} Accordingly, we conclude that the obvious errors in the verdict forms and the trial

court’s sentencing entry that incorrectly states that Scoggins was guilty under R.C.

2925.03(C)(1)(f) and R.C. 2925.11(C)(1)(e) in Counts 1 and 2 respectively, affected Scoggins’s

substantial rights and constitutes plain error. However, because those counts were merged with

Count 3 - the illegal manufacturing of methamphetamine count - we conclude that Scoggins was

never actually convicted of these counts. See State v. Whitfield, supra, at ¶ 12 (“[A] ‘conviction’

consists of a guilty verdict and the imposition of a sentence or penalty.”). Thus, we need not

vacate any sentences, nor remand the matter for resentencing. Nevertheless, pursuant to App.R.

9(E), we instruct that the trial court issue a nunc pro tunc sentencing entry that reduces the

degree of the offenses as to Counts 1 and 2 so as to accurately reflect the jury’s verdict.8

IV. Conclusion

{¶110} Having overruled all of Scoggins’s assignments of error for the reasons stated

above, we affirm the judgment of the trial court. As noted previously, the trial court should issue

a nunc pro tunc sentencing entry that reduces the degree of the offenses as to Counts 1 and 2 so

as to accurately reflect the jury’s verdict.

JUDGMENT AFFIRMED.

8 We note that trial courts retain continuing jurisdiction to correct clerical errors in judgments by nunc pro tunc entry to reflect what the court actually decided. State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 13. Scioto App. No. 16CA3767 43

Harsha, J., concurring in part and dissenting in part:

{¶111} I would not exercise our discretion to consider plain error where Scoggins does

not raise it. See State v. Quarterman, 140 Ohio St.3d 464, 2014–Ohio–4034, 19 N.E.3d 900, ¶

17–20 (appellate court need not consider plain error where appellant fails to timely raise plain-

error claim); State v. Robinson, 4th Dist. Washington No. 16CA22, 2017-Ohio-8273, ¶ 34. This

is consistent with the principle pronounced by the Supreme Court of Ohio that we should notice

plain error “with the utmost caution, under exceptional circumstances”. State v. Lang, 129 Ohio

St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596 (2011). Scioto App. No. 16CA3767 44

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.

The Court finds that reasonable grounds existed for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas 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. Harsha, J.: Concurs in Part and Dissents in Part with Opinion.

For the Court

By: ____________________________ Marie Hoover, 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.