[Cite as State v. Seldon,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98429

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MICHAEL SELDON DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-548201

BEFORE: E.A. Gallagher, J., S. Gallagher, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: March 7, 2013 ATTORNEY FOR APPELLANT

Timothy F. Sweeney Law Office-Timothy Farrell Sweeney The 820 Building, Suite 430 820 West Superior Avenue Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: John D. Toth Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.:

{¶1} Michael Seldon appeals from his conviction in the Cuyahoga County Court

of Common Pleas. Seldon argues that the state violated his Fourth Amendment rights,

that the trial court permitted plain error, that his conviction was not supported by

sufficient evidence and was against the manifest weight of the evidence and that his

attorney rendered ineffective assistance. Finding merit to the instant appeal, we reverse

and remand.

{¶2} This case arose out of a traffic stop that occurred in Solon, Ohio on March

12, 2011. On that date, Seldon, a 29 year-old male, was driving an old pick-up truck

that belonged to his friend, Eric Smeby, who resided in Millersburg, Ohio. With

Seldon in the vehicle that evening was Tarin Trippett and the two were on their way to

Warren, Ohio to pick up another friend.

{¶3} On March 21, 2011, the Cuyahoga County Grand Jury indicted Seldon for

one count of assembly or possession of chemicals used to manufacture

methamphetamine and one count of carrying a concealed weapon for a homemade

sword. The case proceeded to a jury trial and the state presented the testimony of

Officer Troyer and Special Agent Gary Miller from the Ohio Attorney General’s Bureau of Criminal Investigations and Identification.

{¶4} Officer Matthew Troyer, a K-9 police officer with the Solon Police

Department, testified that he noticed Seldon’s vehicle as it was traveling in Solon on

U.S. Route 422 and that the back license plate was not illuminated. Officer Troyer

testified that he followed the vehicle for a short distance, during which time he noticed it

travel off road to the berm, return to the road and then back onto the berm. Officer

Troyer initiated a traffic stop and, because it was nighttime, he called for a second

officer.

{¶5} Officer Troyer testified that when he spoke with Seldon at the vehicle’s

driver window, Seldon stated that he was having trouble with the driver’s door that

would suddenly open and that was why he drove off of the road. Officer Troyer then

decided to deploy his drug-sniffing dog, K-9 Striker, to walk around the vehicle.

According to Officer Troyer, K-9 Striker is trained to alert to the smell of marijuana,

cocaine, heroin, ecstasy and methamphetamine. After the dog walked around the truck,

he alerted to the passenger side door seat.

{¶6} Officer Troyer stated that after Striker alerted, he had Seldon and Trippett

exit the vehicle and sit in the back of the patrol car. The officers then conducted a

thorough search of the vehicle. The officers did not find any illegal drugs but did

recover items that Officer Troyer testified could be used in the manufacture of methamphetamine. The officers recovered the following: (1) one retail package of 96

Sudafed, as sold in a drug store and a plastic baggie with 24 additional Sudafed pills, (2)

two, four-bottle retail packages of Heet brand gas-line antifreeze/water remover, (3) one

can of automotive starting fluid, (4) 27 boxes of matches, (5) four small bottles of iodine,

three of which were from CVS and one from Rite-Aid and (6) one bottle of Brakleen

brake parts cleaner. Police also found an old, homemade sword behind the driver’s

seat.

{¶7} Officer Troyer arrested Seldon for suspicion of manufacturing a controlled

substance and carrying a concealed weapon and cited Seldon for traffic violations and

open container law. Officer Troyer testified that after being taken into custody, Seldon

acknowledged that some of the seized items belonged to him and were for legitimate

purposes. Specifically, Seldon told Officer Troyer that the iodine was for treating sores

on his body, that the brake cleaner was for the brakes on the truck that were problematic,

that he would use the Heet to help start a wood-burning fireplace and that the matches

were to ignite the liquid Heet and to advertise for work. Officer Troyer also testified

that Seldon admitted to trying methamphetamine one week prior.

{¶8} Agent Miller testified against Seldon as an expert witness in the field of

methamphetamines. Agent Miller gave a presentation informing the jury about

methamphetamine and explained the many aspects of methamphetamine use. Agent Miller then opined as to the method of “cooking” that would have been used with the

products seized from Seldon’s truck. Agent Miller’s opinion was that the items would

have been used to cook methamphetamine using the “Red P, Red Phosphorous, of HA,

the Hydraulic Acid method.” Agent Miller explained the four steps of the process and

applied the following exhibits to the steps: pseudoephedrine and Liquid Heet are needed

for step one, Iodine, matches and brake cleaner are used for step two, brake cleaner is

used again for step three and step four, which required salt, acid and hydrogen peroxide.

Agent Miller stated that salt, acid and hydrogen peroxide were all that were chemically

missing to make the methamphetamine.

{¶9} Agent Miller also stated that he used the factors of location, quantity and

combination to determine whether legal items are being used legally or illegally.

{¶10} In response, both Seldon and his father, Michael Seldon, Sr., testified for

the defense. Michael Seldon, Sr. testified that on the day of his son’s arrest, Seldon

was going to Millersburg to find a job and that he had given his son food and money for

gas. Michael Seldon, Sr. stated that his son was looking for work such as drywall,

construction and automotive repair.

{¶11} Seldon testified on his own behalf and explained that some of the items

found in the truck belonged to him and that he purchased many of the items that day.

Seldon stated that the Heet and Brackleen were needed for work he planned on doing down in Holmes County, particularly with respect to damaged or inoperable vehicles.

Seldon testified that he purchased the matchbooks because he stamps them and uses

them to advertise his services. Seldon admitted that the 24 Sudafed pills were his, but

testified that the retail box of 96 pills and the starting fluid were not his. Seldon

testified that he purchased the iodine to treat sores on his arm.

{¶12} Seldon acknowledged telling Officer Troyer about having tried

methamphetamine one time, but that it was not a week prior to his arrest, it was years

ago. Seldon reported that he never manufactured methamphetamine, that he does not

know how to manufacture methamphetamine and that none of the items recovered

from the truck were intended for use in the manufacture of methamphetamine.

{¶13} The jury returned a verdict of guilty of assembly or possession of chemicals

used to manufacture methamphetamine and not guilty of carrying a concealed weapon.

The court sentenced Seldon to 18 months of community control under the supervision of

the Adult Probation Department.

{¶14} Seldon appeals, raising the following six assignments of error:

Assignment of Error I

The deployment by Solon police of a drug-sniffing dog to detect for illegal drugs in the subject vehicle violated Seldon’s rights under Article I, Section 14 of the Ohio Constitution because the Solon police lacked any basis whatsoever for believing, and had no reasonable suspicion, that the vehicle’s occupants had any involvement with drugs such as would justify escalating a routine traffic stop into a search for illegal drugs. Assignment of Error II

It was plain error for the trial court to permit the State’s “expert” witness to offer an opinion that Seldon had the required unlawful intent to manufacture methamphetamine and was guilty of the offense.

Assignment of Error III

Michael Seldon’s conviction is based on evidence that is insufficient as a matter of law, in violation of Seldon’s rights to due process and a fair trial as guaranteed by Article I, Sections 10 and 16 of the Ohio Constitution, and the Fourteenth Amendment to the United States Constitution.

Assignment of Error IV

The trial court erred in denying Seldon’s motions for judgment of acquittal made at the conclusion of the State’s case, and again when all the evidence was presented, because the evidence failed to establish that Seldon had the intent to manufacture methamphetamine.

Assignment of Error V

Michael Seldon’s conviction is against the manifest weight of the evidence.

Assignment of Error VI

Seldon’s trial counsel provided ineffective assistance of counsel by: (1) failing to seek suppression of the evidence recovered from the vehicle as being obtained in violation of Seldon’s rights under the Ohio Constitution; and (2) failing to object and seeking a mistrial and/or to strike the improper opinion of the State’s expert that Seldon had the required unlawful intent to manufacture methamphetamine and was guilty of the offense.

{¶15} Because we find Seldon’s third and fourth assignments of error

dispositive of the instant appeal, we shall address them out of order. {¶16} The standard of review with regard to the sufficiency of the evidence is set

forth in State v. Bridgeman,

,

(1978), as follows:

Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.

{¶17} Bridgeman must be interpreted in light of the sufficiency test outlined in

State v. Jenks,

,

(1991), paragraph two of the syllabus,

in which the Ohio Supreme Court held:

An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Citation omitted.)

{¶18} In the present case, the jury found Seldon guilty of one count of Assembly

or Possession of Chemicals used to Manufacture Controlled Substance, which, pursuant

to R.C. 2925.041(A) provides as follows:

No person shall knowingly assemble or possess one or more chemicals that may be used to manufacture a controlled substance in schedule I or II with the intent to manufacture a controlled substance in schedule I or II in violation of section 2925.04 of the Revised Code.

{¶19} Thus, in accordance with the statute, the state has the burden of production

of three elements: (1) knowingly assemble or possess one or more chemicals, (2) that may be used to manufacture a controlled substance in schedule I or II, (3) with the intent

to manufacture a controlled substance in violation of R.C. 2925.04.

{¶20} It is undisputed that the state met its burden of production on the first two

elements. Seldon admittedly possessed pseudoephedrine, iodine, matches, starter fluid,

brake cleaner and liquid HEET when Officer Troyer searched the vehicle but denied

ownership of some of these items. Also, the parties stipulated that methamphetamine is

a schedule II drug and Agent Miller testified that the chemicals in Seldon’s possession

are some of those necessary to make methamphetamine using the red phosphorous

method, but that additional products and equipment are necessary. However, the state

failed to prove, by sufficient evidence, that Seldon possessed the above-listed chemicals

with the intent to manufacture methamphetamine.

{¶21} Under the clear requirements of R.C. 2925.041(A), the mere assembly or

possession of chemicals that could be used to produce a controlled substance is not

sufficient to prove the performance of the criminal act. State v. Cumberledge, 11th

Dist. No. 2010-L-142,

. In addition to possessing the chemical, the

state must further demonstrate a present intent on the part of the defendant to actually

use the chemical in the future to produce the illegal drug. Cumberledge.

In most instances, proof of this intent will likely be based upon the defendant’s completion of a subsequent act, such as an initial step in the manufacturing process. However, in some situations, the “intent” element can be satisfied through proof of the defendant’s prior production of the controlled substance.

{¶22} In the present case, the state presented the following series of inferences to

demonstrate Seldon’s alleged intent to manufacture methamphetamine:

1. Possession of the above-listed chemicals.

2. Testimony from Agent Miller that the seized chemicals are all used in the red phosphorous method of cooking methamphetamine. 3. Agent Miller’s opinion based on a location, quantity and combination theory, that the seized products could be used to manufacture methamphetamine.

4. That K-9 Striker alerted to a narcotic in the vehicle and

5. Seldon’s admission that he had tried methamphetamine in the past.

{¶23} It is the state’s argument that this evidence, when viewed in the light most

favorable to the state, showed an intention to manufacture methamphetamine. In

putting forth its case, the state argued that mere possession and the ability to manufacture

methamphetamine from the possessed chemicals is enough to infer an intent to

manufacture. We find this erroneous and insufficient to support a conviction for

Assembly or Possession of Chemicals used to Manufacture Controlled Substance.

{¶24} In cases throughout Ohio where convictions for Assembly or Possession of

Chemicals used to Manufacture Controlled Substance were upheld, the state produced

evidence from which a jury could conclude beyond a reasonable doubt that the requisite

intent to manufacture existed. Such evidence included the following: That the defendant knew how to manufacture methamphetamine, State v. Stevenson, 5th Dist. No.

09CA16,

; that the defendant made admissions that he intended to

manufacture and/or had participated in the manufacture of methamphetamine, State v.

Smith, 4th Dist. No. 09CA29,

; that the defendant’s prior acts or

statements of accomplices and/or other witnesses, demonstrated the defendant’s knowing

participation in the manufacture of methamphetamine, Cumberledge, supra; the

defendant, in addition to chemicals, possessed the actual physical equipment needed to

manufacture methamphetamine, such as beakers, filters, tubing, electrical tape, copper

fittings, a heat source, etc., State v. Throckmorton, 4th Dist. No. 08CA17,

, reversed on other grounds; the defendant possessed or had known

access to a methamphetamine lab, or had injuries consistent with work in a

methamphetamine lab, State v. Downing, 12th Dist. No. CA2009-09-036; the defendant

possessed quantities of the drug, or known drug delivery devices, i.e., syringes,

contemporaneous with his possession of the chemicals, Throckmorton, supra.

{¶25} This court is not requiring all of the above, we are just referencing the

many methods the state may use to prove an intent on the part of the accused to

manufacture methamphetamine, none of which were utilized by the state. The state’s

entire case is based on Seldon’s possession of some legally possessed items. It has set

forth no evidence that Seldon completed a subsequent act beyond mere possession, no evidence of Seldon’s prior production of the controlled substance and no evidence that

Seldon knew how to manufacture the drug. See Cumberledge, Stevenson. In fact,

Seldon testified that he did not know how to manufacture methamphetamine.

{¶26} Based on the foregoing, we find that the state failed to present sufficient

evidence that Seldon intended to manufacture methamphetamine with the seized

chemicals. As such, his conviction and sentence must be vacated.

{¶27} Because we found Seldon’s third and fourth assignments of error to have

merit, we decline to address his remaining assigned errors.

{¶28} This case is reversed and remanded for further proceedings consistent with

this opinion.

It is ordered that appellant recover of said appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

lower court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and PATRICIA A. BLACKMON, J., CONCUR