Court of Appeals of Ohio, Fourth District, Scioto
Rutan, Columbus, Ohio, for appellant.
E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis,
Scioto County Assistant Prosecuting Attorney, Portsmouth,
Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
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.
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 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.
Facts and Procedural History
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.
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. 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.
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.
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 count, 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.
Shortly thereafter, a sentencing entry was journalized and
Scoggins then filed a timely notice of appeal.
Assignments of Error
Scoggins assigns the following errors for our review:
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.
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.
Assignment of Error:
The Trial Court Erred By Not Granting A Mistrial After
Payton's Prejudicial Statement And Prejudicial Questions
By The Prosecutor.
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
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.
Assignment of Error:
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.
Assignment of Error:
The Trial Court Abused Its Discretion In Sentencing The
Appellant To A Near Maximum Prison Term And In Imposing
Law and Analysis
First Assignment of Error: Motion to Suppress
In his first assignment of error, Scoggins contends that the
trial court erred in overruling his motion to suppress
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.
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. 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 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.
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.
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.
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.
" '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');">2010-Ohio-1784, ¶ 25, and
cases cited therein.
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.")
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 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.
Here, the law enforcement officers travelled to the Wooten
residence to conduct a probation home check and were lawfully
present on the property. 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.
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.
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 (2000). 804,
citing McDonald v. United States, 335 U.S. 451, 454,
69 S.Ct. 191, 93 L.Ed. 153 (1948).
Regarding exigent circumstances arising from methamphetamine
production specifically, Ohio enacted R.C. 2933.33 which
(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
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.
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).
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 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
Second Assignment of Error: Juror Impartiality
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.
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
In addressing a prejudice claim similar to Scoggins's,
the Ohio Supreme Court stated as follows:
* * * [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).
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 ...