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State v. Tipton

Court of Appeals of Ohio, Eleventh District

July 22, 2013

STATE OF OHIO, Plaintiff-Appellee,
JOSHUA B. TIPTON, Defendant-Appellant.

Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2011 CR 0801.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee).

Richard E. Hackerd, (For Defendant-Appellant).



{¶1} Appellant, Joshua B. Tipton, appeals his conviction, following a jury trial, in the Portage County Court of Common Pleas of illegal manufacture of methamphetamine. At issue is whether appellant's trial counsel provided effective assistance. For the reasons that follow, we affirm.

{¶2} On December 23, 2011, appellant was indicted for illegal manufacture of methamphetamine ("meth") in the vicinity of a school, a felony of the first degree, in violation of R.C. 2925.04. Appellant pled not guilty. The case was tried to a jury in May 2012.

{¶3} Detective Joan Bauer of the Ravenna Police Department testified that on December 12, 2011, a confidential informant ("CI") told her that appellant was trying to sell a firearm and the CI asked if Detective Bauer was interested. After the detective said she was interested, the CI contacted appellant and appellant's associate, Laurie Claeys, and said she had a friend who would buy the gun. At that time appellant and Claeys told the CI that they were selling meth and would sell the CI's friend, i.e., Detective Bauer, four grams for $400. After the CI relayed this information, Detective Bauer agreed to buy both items.

{¶4} On December 14, 2011, Detective Bauer met with the CI, who had been in contact with Claeys and appellant about buying the meth. The purchase was to take place that day at a single-family residence on West Elm Street in Kent, Ohio, which was owned by one Kenneth Brewster. Detective Bauer was with the CI while the CI placed several telephone calls to appellant, Claeys, and Brewster, to set up a time when Detective Bauer and the CI would meet them.

{¶5} Detective Bauer testified that at about 7:30 p.m., appellant called the CI using Claeys' cell phone. Detective Bauer said she is familiar with appellant's voice from her previous undercover contacts with him. She heard appellant tell the CI that she and her "friend" should come to the house in 20 minutes and that the meth "would be done" at that time.

{¶6} Detective Bauer testified that she was working with other law enforcement agencies in connection with this operation, including the Kent Police Department, the Portage County Sheriffs Office, the Metro SWAT Unit, and Federal ATF agents, all of whom already had the house under surveillance. At about 7:30 p.m., the cover team advised Detective Bauer that Claeys and appellant were in the residence.

{¶7} At about 8:00 p.m., Detective Bauer and the CI went to Brewster's residence to make the buy. Upon arrival, Brewster opened the door and let them in. Upon entering the house, appellant was in the kitchen by the sink. He was pacing back and forth; acting "very erratic" and "agitated;" and staring out the window. Appellant then went in the bathroom and locked the door. Claeys was already in the bathroom at that time.

{¶8} After awhile, Claeys came out of the bathroom and said it was taking them longer than expected to finish the meth. She said they could "pull it off right now, " but Detective Bauer would not be happy because she would not receive as much meth. As a result, Claeys said they should wait. Claeys said appellant was in the bathroom "burping the bottle, " referring to the step in the manufacturing process where pressure is released from the plastic pop bottle used to "cook" the meth by slightly opening the bottle cap.

{¶9} Shortly thereafter, appellant came out of the bathroom; walked around for awhile; talked to Claeys; and then he and Claeys returned to the bathroom. After awhile, Claeys called the CI to come to the bathroom door. The CI walked to the bathroom and Detective Bauer followed her. Claeys said the meth should cook longer. She said, "the longer it cooks, the better it is." At that point, Detective Bauer saw appellant inside the bathroom bending over the bottle being used to manufacture the meth with his hand on the bottle. Detective Bauer testified, "[appellant] was probably burping it, but [she] didn't see the whole process." The detective said that appellant and Claeys were "cooking meth right in front of [her]."

{¶10} About one-half hour later, Claeys came out of the bathroom again, and said it would take another hour to complete the manufacturing process. Detective Bauer asked about the price of the meth. Claeys said she was not sure of the price because all three of them, appellant, Claeys, and Brewster, had gone in on this together and they had to charge extra for the pseudoephedrine, which is used in making meth.

{¶11} Detective Bauer told Claeys that she and the CI would return in about an hour to pick up the meth. She and the CI left the residence, and the detective contacted the cover team to advise they had just left the house. The cover team approached the house and ordered appellant to come out.

{¶12} Laurie Claeys testified that she pled guilty to illegal manufacture of methamphetamine, a first-degree felony, based on her involvement in this case. She said she is awaiting sentencing and that no one had made any promises to her regarding her sentence.

{¶13} Claeys said that on December 14, 2011, she and appellant went to Brewster's house. They planned to make four grams of meth and to sell it for $400. She said that she, appellant, and Brewster all agreed to do this. She said she had previously made arrangements with a friend of hers, who turned out to be the CI, who was going to bring someone to the house to buy the meth.

{¶14} Claeys testified that the day before, December 13, 2011, she and appellant purchased the lye and other ingredients they needed to make the meth. She said that during the day on December 14, 2011, she, a friend of hers, appellant, and his girlfriend went to different pharmacies and bought pseudoephedrine, which was to be used in making the meth.

{¶15} Claeys said she talked to the CI several times during the day on December 14, 2011. She said she kept telling her they were delayed. This was because they had difficulty finding people to get pseudoephedrine for them.

{¶16} Claeys testified that by 7:00 p.m., she and appellant had all the ingredients they needed to make meth. The ingredients are lye, lithium strips from the inside of batteries, acid, lantern fuel, and ammonium nitrate, which is a granular chemical found in cold packs. At that time she and appellant started to make the meth in the bathroom.

{¶17} Claeys stated that when they started making the meth, the bathroom door was closed, but, after awhile, she opened it due to the fumes that resulted from releasing pressure in the pop bottle. Claeys said that appellant helped her by putting the ingredients for the ...

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