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State v. Scoggins

Court of Appeals of Ohio, Fourth District, Scioto

December 8, 2017

STATE OF OHIO, Plaintiff-Appellee,
RONALD SCOGGINS, Defendant-Appellant.

          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.


          Marie Hoover, Judge.

         {¶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 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 History[1]

         {¶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. 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 count[2], 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

         {¶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.

         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 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.

         {¶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');">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 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 (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 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:

* * * [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 ...

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