[Cite as State v. Ramsey,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : ROBERT J. RAMSEY : Case No. 17-CA-76 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2017CR00231

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 18, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DANIEL J. BENOIT JAMES A. ANZELMO 20 South Second Street 446 Howland Drive Fourth Floor Gahanna, OH 43230 Newark, OH 43055 Licking County, Case No. 17-CA-76 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant, Robert J. Ramsey, appeals his September 11, 2017

conviction by the Court of Common Pleas of Licking County, Ohio. Plaintiff-Appellee is

the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On March 22, 2017, officers with the adult parole authority were

investigating reports of the unlawful manufacturing of methamphetamine involving two of

their parolees, Douglas Johnson and Douglas Baumgartner. The officers went to a

property owned by Mr. Johnson. The property contained a structure occupied by Mr.

Johnson, another structure occupied by Mr. Baumgartner, and a third structure which was

a cabin. The officers were accompanied by law enforcement due to the nature of the

investigation. Several police officers were present at the scene, including Licking County

Sheriff Detectives Greg Collins and Alan Thomas. Also present on the property at the

time were appellant and his wife. Mr. Johnson had offered appellant and his wife the

opportunity to rent the cabin in the future in exchange for cleaning and fixing up the

dwelling. Supplies used to manufacture methamphetamine were found inside the cabin.

Several individuals were arrested, including appellant.

{¶ 3} On March 30, 2017, the Licking County Grand Jury indicted appellant on

one count of aggravated possession of drugs in violation of R.C. 2925.11, one count of

illegal assembly or possession of chemicals for the manufacture of drugs in violation of

R.C. 2925.041, one count of having a weapon while under disability in violation of R.C.

2923.13, and one count of illegal manufacture of drugs in violation of R.C. 2925.04. Licking County, Case No. 17-CA-76 3

{¶ 4} Prior to trial, appellant requested a polygraph examination and stipulated to

its admissibility.

{¶ 5} A bench trial was scheduled for July 26, 2017. On the morning of trial,

appellant pled guilty to the possession and disability counts. The remaining charges

proceeded to trial. The trial court found appellant guilty as charged.

{¶ 6} Prior to sentencing, appellant filed a motion to dismiss his counsel, claiming

his counsel was ineffective. The trial court denied the motion. By judgment entry filed

September 11, 2017, the trial court sentenced appellant to an aggregate term of five years

in prison.

{¶ 7} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶ 8} "THE TRIAL COURT'S DECISION TO FIND RAMSEY GUILTY ON THE

OFFENSES OF ILLEGAL ASSEMBLY OR POSSESSION OF CHEMICALS FOR THE

MANUFACTURE OF DRUGS AND ILLEGAL MANUFACTURE OF DRUGS IS BASED

ON INSUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF

THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION."

II

{¶ 9} "THE TRIAL COURT'S DECISION TO FIND RAMSEY GUILTY ON THE

OFFENSES OF ILLEGAL ASSEMBLY OR POSSESSION OF CHEMICALS FOR THE

MANUFACTURE OF DRUGS AND ILLEGAL MANUFACTURE OF DRUGS IS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS Licking County, Case No. 17-CA-76 4

CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO

CONSTITUTION."

III

{¶ 10} "RAMSEY RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN

VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."

IV

{¶ 11} "THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

RAMSEY'S MOTION TO DISMISS HIS TRIAL COUNSEL, IN VIOLATION OF THE

SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10,

ARTICLE I OF THE OHIO CONSTITUTION."

I, II

{¶ 12} In his first two assignments of error, appellant claims his convictions for the

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

manufacture of drugs were against the sufficiency and manifest weight of the evidence.

We disagree.

{¶ 13} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks,

,

(1991). "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 Licking County, Case No. 17-CA-76 5

doubt."

at paragraph two of the syllabus, following Jackson v. Virginia,

,

,

(1979).

{¶ 14} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered." State v. Martin,

,

(1st Dist. 1983). See also, State v. Thompkins,

,

(1997). The granting of a new trial "should be exercised only in the exceptional case

in which the evidence weighs heavily against the conviction."

.

{¶ 15} We note circumstantial evidence is that which can be "inferred from

reasonably and justifiably connected facts." State v. Fairbanks,

,

(1972), paragraph five of the syllabus. "[C]ircumstantial evidence may be

more certain, satisfying and persuasive than direct evidence." State v. Richey,

,

,

. It is to be given the same weight and

deference as direct evidence.

{¶ 16} Appellant was convicted of the illegal assembly or possession of chemicals

for the manufacture of drugs in violation of R.C. 2925.041 which states:

(A) No person shall knowingly assemble or possess one or more

chemicals that may be used to manufacture a controlled substance in

schedule I or II with the intent to manufacture a controlled substance in

schedule I or II in violation of section 2925.04 of the Revised Code. Licking County, Case No. 17-CA-76 6

(B) In a prosecution under this section, it is not necessary to allege

or prove that the offender assembled or possessed all chemicals necessary

to manufacture a controlled substance in schedule I or II. The assembly or

possession of a single chemical that may be used in the manufacture of a

controlled substance in schedule I or II, with the intent to manufacture a

controlled substance in either schedule, is sufficient to violate this section.

{¶ 17} Appellant was also convicted of the illegal manufacture of drugs in violation

of R.C. 2925.04 which states: "No person shall knowingly cultivate marihuana or

knowingly manufacture or otherwise engage in any part of the production of a controlled

substance."

{¶ 18} Both Detectives Collins and Thomas testified at trial. They testified to

discovering many items outside and inside the cabin associated with the manufacture of

methamphetamine. T. at 38-60, 72, 99-100, 102-103; State's Exhibits 3 and 7. A "gas

generator" used to make methamphetamine "was still off-gassing, which means it was

still having - - the two components were still chemically reacting." T. at 72. There is a

"strong chemical odor" associated with off-gassing.

Appellant was present on the

property. T. at 36-37. Discovered in his vehicle was an open container of salt. T. at 59;

State's Exhibit 21. Salt is used in the production of methamphetamine. T. at 48-49, 59-

60. Appellant was read his rights and was willing to speak with the detectives. T. at 60.

At first appellant denied that the items discovered in the cabin belonged to him and he

was cooking methamphetamine. T. at 61, 75, 104. He then admitted to owning the items

and admitted "that he had in fact cooked down there a couple of times." T. at 61, 71-72, Licking County, Case No. 17-CA-76 7

76, 107. Appellant admitted to being familiar with the manufacture of methamphetamine,

and stated he was cooking for personal use, not for profit. T. at 66, 204. Indeed, appellant

was familiar with the manufacture of methamphetamine because he had a prior conviction

for the illegal manufacture of methamphetamine in 2011. T. at 178. Appellant admitted

to purchasing pseudoephedrine four times from February to March 2017, a necessary

ingredient to manufacture methamphetamine. T. at 40, 63-64, 106, 199-200, 208-209;

State's Exhibit 1.

{¶ 19} Cindy Erwin conducted the polygraph that appellant had requested. She

asked appellant three relevant questions: 1) "At the property on Pleasant Valley Road did

you ever cook meth?" 2) "At the property on Pleasant Valley Road did you ever assemble

those items that were used to cook meth - that are used, rather, to cook meth?" 3) "At the

property on Pleasant Valley Road did you ever help anyone cook meth?" T. at 136.

Appellant answered in the negative. T. at 139-140. Ms. Erwin found appellant's answers

"showed significant indicators of deception." T. at 138; State's Exhibit 5.

{¶ 20} Appellant took the stand in his own defense. He testified about two to three

weeks before he was arrested, he spoke to Mr. Johnson about cleaning and fixing up the

cabin in exchange for the opportunity to rent it. T. at 182-183. The previous occupants

(appellant's cousin) had destroyed the property, and he believed they still had a key to

the cabin. T. at 180, 183, 191-192. Appellant stated his cousin's girlfriend's father knew

how to make methamphetamine and he was frequently at the property. T. at 210-211.

Appellant went to the cabin four to five times before his arrest, dropping off materials, and

cleaning "up a lot of things." T. at 185. On the day of his arrest, appellant was at the

cabin working when he ran out of gas for his chainsaw. T. at 190. He decided to go Licking County, Case No. 17-CA-76 8

purchase more gasoline. T. at 192. He drove up the hill and "it looked like a SWAT team

up there."

Appellant stopped and spoke with law enforcement officers. He stated he

told Detective Collins four times he did not cook methamphetamine on the property. T.

at 194-195, 219. He denied telling Detective Collins the items used to cook

methamphetamine belonged to him. T. at 195, 219, 224. Appellant denied that most of

the items seized belonged to him. T. at 196-199. He admitted to making the

pseudoephedrine purchases to trade for methamphetamine with Mr. Baumgartner. T. at

200, 205. On cross-examination, appellant agreed it was fair to say that the

pseudoephedrine he purchased and gave to Mr. Baumgartner was likely used to cook

methamphetamine. T. at 207. He explained the salt was in his vehicle because he went

to the food pantry and "we lived kind of in our truck." T. at 201. Appellant denied ever

cooking methamphetamine on the property or helping anyone to cook. T. at 203, 217.

He denied possessing any items for the purpose of manufacturing methamphetamine. T.

at 203. He believed the whole thing was a big misunderstanding. T. at 220.

{¶ 21} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. Jamison,

,

(1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page."

Davis v. Flickinger,

,

(1997).

{¶ 22} Given the evidence presented, we find sufficient evidence to support the

guilty findings for the illegal assembly or possession of chemicals for the manufacture of

drugs and the illegal manufacture of drugs. We do not find that the trial court lost its way

or any manifest miscarriage of justice. Licking County, Case No. 17-CA-76 9

{¶ 23} Assignments of Error I and II are denied.

III

{¶ 24} In his third assignment of error, appellant claims he was denied the effective

assistance of counsel. We disagree.

{¶ 25} Specifically, appellant argues his trial counsel failed to file a motion to

suppress the evidence found in the cabin and his statements made to police, entered into

an invalid stipulation on the admissibility of the polygraph test and failed to object to the

admission of the results into evidence, and failed to request a waiver of court costs.

{¶ 26} The standard this issue must be measured against is set out in State v.

Bradley,

,

(1989), paragraphs two and three of the

syllabus. Appellant must establish the following:

2. Counsel's performance will not be deemed ineffective unless and

until counsel's performance is proved to have fallen below an objective

standard of reasonable representation and, in addition, prejudice arises

from counsel's performance. (State v. Lytle [1976],

,

,

; Strickland v. Washington [1984],

,

,

, followed.)

3. To show that a defendant has been prejudiced by counsel's

deficient performance, the defendant must prove that there exists a

reasonable probability that, were it not for counsel's errors, the result of the

trial would have been different. Licking County, Case No. 17-CA-76 10

{¶ 27} This court must accord deference to defense counsel's strategic choices

made during trial and "requires us to eliminate the distorting effect of hindsight." State v.

Post,

,

(1987).

MOTION TO SUPPRESS

{¶ 28} As stated by this court in State v. Altman, 5th Dist. Licking No. 06 CA 117,

, ¶ 20:

[F]ailure to file a motion to suppress is not per se ineffective

assistance of counsel. State v. Madrigal,

, 2000-

Ohio-448,

, certiorari denied (2000),

,

,

. See also, Kimmelman v. Morrison (1986),

,

,

. Even when some evidence in

the record supports a motion to suppress, counsel is presumed to be

effective if the counsel could have reasonably concluded that the filing of a

motion to suppress would have been a futile act. State v. Chandler,

Cuyahoga App. No. 81817,

; State v. Edwards (July 11,

1996), Cuyahoga App. No. 69077, citing State v. Martin (1983),

,

. See also, Strickland,

. In

such a case, where probability of success is slim, appellant fails to establish

prejudice. State v. Nields,

,

,

. Essentially, counsel's failure to file a motion to suppress only

constitutes ineffective assistance if, based on the record, the motion would Licking County, Case No. 17-CA-76 11

have been granted. State v. Robinson (1996),

,

.

{¶ 29} Appellant argues the search of the cabin without a warrant was

unreasonable. Although he acknowledges the exception that parole officers, with the help

of law enforcement, can conduct warrantless searches if there is a reasonable suspicion

that the parolee is engaged in criminal activity, appellant argues the exception does not

extend to areas the parolee rents out to third parties. Appellant argues in this case, the

parole search exception does not apply because Mr. Johnson had rented out the cabin

to him.

{¶ 30} Adult Parole Officer Joseph Buck testified the subject property, including

the cabin, was owned by Mr. Johnson, one of the parolees he was investigating. T. at

23-25. Appellant testified he spoke with Mr. Johnson and "me and my wife was asked to

clean up the property, buy the materials, supply the materials needed to fix the property

back up, and then after that then we would discuss renting the property out." T. at 183.

Appellant and his wife had thirty to ninety days to fix up the cabin and then Mr. Johnson

would talk about leasing the cabin to them. T. at 183-184. Appellant testified the previous

occupants still had a key to the cabin. T. at 192. Appellant stated, "[m]e and my wife was

never living in that property." T. at 216. Appellant's own testimony establishes Mr.

Johnson had not rented the cabin to him.

{¶ 31} We note appellant's defense was to distance himself from the cabin; that he

merely was cleaning it up and the prior occupants still had access to the cabin. He does Licking County, Case No. 17-CA-76 12

not now get to benefit from an argument that he was in fact a tenant of the cabin and

protected from the parole search exception.

{¶ 32} Filing a motion to suppress arguing an illegal search would have been a

futile act. Appellant's statements made to police were not the result of an illegal search.

Appellant received Miranda warnings prior to making his statements. T. at 60.

{¶ 33} Upon review, we do not find any ineffective assistance of counsel on this

issue.

POLYGRAPH TEST

{¶ 34} Appellant argues his trial counsel erred in stipulating to the polygraph

examination results without also stipulating to the admissibility of the accompanying

charts and graphs, and erred in not objecting to the admissibility of the results without the

charts and graphs.

{¶ 35} In State v. Souel,

, syllabus, the Supreme Court of Ohio

held the following in pertinent part:

The results of a polygraphic examination are admissible in evidence

in a criminal trial for purposes of corroboration or impeachment provided

that the following conditions are observed:

The prosecuting attorney, defendant and his counsel must sign a

written stipulation providing for defendant's submission to the test and for

the subsequent admission at trial of the graphs and the examiner's opinion

thereon on behalf of either defendant or the state. Licking County, Case No. 17-CA-76 13

{¶ 36} In State v. Williams, 5th Dist. Licking No. 95 CA 69,

, *2

(Jan. 14, 1997), this court stated: "It seems clear that under Section 1 of the Souel

standard that the stipulation requires admission at trial of both the graphs and the

examiner's opinion. Therein, the Supreme Court specifically used the conjunctive 'and'

as opposed to the disjunctive 'or.' "

{¶ 37} On June 19, 2017, appellant, his trial counsel, and the prosecutor entered

into a stipulation wherein appellant agreed to submit to a polygraph test and agreed the

"tests and results will be admitted at trial without objection." The stipulation is silent as to

the admission of charts and graphs.

{¶ 38} The polygraph examiner, Cindy Erwin, testified during the trial to the court.

She testified to the procedures involved in administering the test, the questions posed to

appellant, both comparison questions and the relevant questions as cited above, and to

her report which concluded: "Specific reactions indicative of deception appeared on the

subject's charts as a result of relevant questions asked during the examination. It is to

be considered, therefore, that this person did not tell the truth during the tests." State's

Exhibit 5. The charts and graphs are not attached to the report.

{¶ 39} During cross-examination, Ms. Erwin acknowledged she had the charts with

her. T. at 143. Defense counsel questioned her on what the charts indicated relative to

her conclusion of deception. T. at 139-145. Ms. Erwin testified appellant's responses to

all three questions were consistent, with no difference in the levels between one question

to another. T. at 145.

{¶ 40} Following cross-examination, the trial court asked Ms. Erwin's questions

about the polygraph test. The trial court specifically asked about the charts and graphs Licking County, Case No. 17-CA-76 14

and in fact placed the charts and graphs on the overhead and screen. T. at 153. Ms.

Erwin then explained what the charts and graphs indicated, pointing out appellant's

responses to the comparison questions relative to the relevant questions. T. at 153-154.

Ms. Erwin discussed appellant's thoracic breathing, abdominal breathing, galvanic skin

response, and cardio. T. at 154-155. On recross-examination, defense counsel asked

Ms. Erwin additional questions about the charts and graphs, painstakingly going over all

of the information contained therein. T. at 158-167.

{¶ 41} In Williams, the defendant specifically requested the admission of the

polygraph's charts and graphs for the jury's review. The trial court denied the request.

Based upon the holding in Souel, the Williams court determined that decision to be in

error. In the case sub judice, defense counsel was free to request the admission of the

charts and graphs, but chose not to do so. Defense counsel cannot then turn around and

object to the admissibility of the results because the charts and graphs were not included.

This case was tried to the bench. The trial court and defense counsel extensively

questioned Ms. Erwin on the charts and graphs. Appellant has not shown any prejudice.

{¶ 42} We do not find the stipulation to be invalid because it did not include a

stipulation to the admissibility of the charts and graphs. Defense counsel could have

moved to have the charts and graphs admitted during the trial and presumably, pursuant

to Souel, the request would have been granted. Whether a defendant moves to have the

charts and graphs admitted can be a matter of trial strategy. We do not find that Souel

or Williams require the admission of the charts and graphs absent a request.

{¶ 43} Upon review, we do not find any ineffective assistance of counsel on this

issue. Licking County, Case No. 17-CA-76 15

COURT COSTS

{¶ 44} Appellant argues his trial counsel erred in failing to request a waiver of court

costs.

{¶ 45} In State v. Davis, 5th Dist. Licking No. 17-CA-55 (Dec. 20, 2017), ¶ 27, this

court reviewed this exact issue and determined the following:

We find no merit in Appellant’s allegation that he received ineffective

assistance of counsel as a result of his attorney failing to request that the

trial court waive court costs. Because R.C. 2947.23(C) grants appellant the

ability to seek waiver of costs at any time, including after sentencing,

Appellant has not been prejudiced by the failure of his counsel to request a

waiver at sentencing.

{¶ 46} We note this court's decision in Davis has been accepted for review by the

Supreme Court of Ohio upon certification of a conflict with the decision in State v.

Springer, 8th Dist. Cuyahoga No. 104649,

. Unless a decision is

rendered on the issue to the contrary in the future, this court will continue to abide by its

decision in Davis.

{¶ 47} Upon review, we do not find any ineffective assistance of counsel on this

issue.

{¶ 48} Assignment of Error III is denied.

IV Licking County, Case No. 17-CA-76 16

{¶ 49} In his fourth assignment of error, appellant claims the trial court erred in

denying his motion to dismiss his trial counsel prior to sentencing. We disagree.

{¶ 50} Appellant's trial counsel was court-appointed. "To discharge a court-

appointed attorney, the defendant must show a breakdown in the attorney-client

relationship of such magnitude as to jeopardize the defendant's right to effective

assistance of counsel." State v. Coleman,

,

(1988),

paragraph four of the syllabus. " 'An indigent defendant has no right to have a particular

attorney represent him and therefore must demonstrate "good cause" to warrant

substitution of counsel.' " State v. Cowans,

, 72,

, quoting

United States v. Iles (C.A.6, 1990),

.

{¶ 51} The trial court's decision is reviewed under an abuse of discretion standard.

In order to find an abuse of discretion, we must determine the trial court's decision

was unreasonable, arbitrary or unconscionable and not merely an error of law or

judgment. Blakemore v. Blakemore,

,

(1983).

{¶ 52} Following his trial but prior to sentencing, appellant filed a pro se motion to

dismiss his court-appointed counsel because of 1) "conflict of interests"; 2) "not filing

motions, not calling witnesses, etc."; and 3) "misleading me." At the start of the

sentencing hearing, the trial court entertained appellant's motion and then denied the

motion. September 8, 2017 T. at 5-9.

{¶ 53} In his appellate brief at 15-16, appellant sets forth several instances of a

breakdown in the relationship between himself and his trial counsel. We have reviewed

the argued instances and find them to be without merit. Licking County, Case No. 17-CA-76 17

{¶ 54} Upon review, we do not find the trial court abused its discretion in denying

appellant's motion to dismiss his court-appointed counsel prior to sentencing.

{¶ 55} Assignment of Error IV is denied.

{¶ 56} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Gwin, J. and

Delaney, J. concur.

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