Court of Appeals of Ohio, Eleventh District, Lake
Appeal from the Lake County Court of Common Pleas, Case No.
2016 CR 000346.
Charles E. Coulson, Lake County Prosecutor, and Anna C.
Kelley, Assistant Prosecutor, Lake County Administration
Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Charles R. Grieshammer, Lake County Public Defender, 125 East
Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
R. WRIGHT, J.
After a jury trial, appellant, Max S. Struble, was found
guilty of illegal assembly or possession of chemicals for the
manufacture of drugs, count one; aggravated possession of
drugs, count two; and possessing criminal tools, count three.
He challenges the denial of his pro se motion to represent
himself at trial; two evidentiary rulings; and contends his
conviction on count one is against the manifest weight of the
evidence. The conviction on court one is reversed and the
convictions on counts two and three are affirmed.
On March 30, 2016, Patrolmen Michael Bruening and Ryan Butler
of the Mentor City Police Department were engaged in a theft
investigation involving various retail stores on Mentor
Avenue. As part of the theft detail, the officers surveilled
parking lots of stores for suspicious behavior. The officers
wore civilian clothes and drove an unmarked vehicle. They
were on the lookout for cars with several people, some of
whom would make multiple trips into a store while the others
remained in the vehicle.
At approximately 11:30 a.m., the two officers were parked
beside a Target retail store when they noticed a tan Saturn
pull into the parking lot. The Saturn had four occupants, two
females in the front seat, and two males in the back. The two
females were later identified as Paige Tiedman and Gwendolyn
Tingley. Appellant was sitting behind the front passenger
Appellant and Tiedman exited the vehicle and went into
Target, while the other two remained in the vehicle. Seeing
this as suspicious, Bruening followed appellant and Tiedman
into the store, while Butler continued to watch the vehicle
occupants. Initially, Bruening could not locate either
appellant or Tiedman in the store. During this time,
appellant briefly returned to the Saturn, but immediately
went back into the store. After a few moments, Bruening saw
appellant make a purchase at the in-store pharmacy. After the
purchase was completed and appellant left the area, a
pharmacy employee told Bruening that appellant purchased two
boxes of Sudafed, each containing forty-eight pills.
Ultimately, appellant and Tiedman separately returned to the
car. When the last of them exited the store, Bruening
returned to his car. Since Sudafed contains pseudoephedrine,
a chemical used to manufacture methamphetamine, the officers
followed the Saturn a short distance to a second retail
Appellant exited, this time with Gwendolyn Tingley. Appellant
changed from a black long-sleeved shirt he wore at Target
into a yellow t-shirt. Bruening followed appellant and
Tingley into Lowe's. Upon catching up to them in the
plumbing department, Bruening saw appellant identify a
product on a shelf, drain cleaner, used in the manufacturing
of methamphetamine. Appellant then left Tingley and returned
to the Saturn. Bruening saw Tingley buy drain cleaner.
Bruening and Butler continued to follow the Saturn when it
left and called for assistance. Patrolman Bryan Distrelrath,
operating a marked patrol car nearby, responded. When the
Saturn turned onto another road, the driver, Paige Tiedman,
failed to signal. Bruening and Butler thereafter instructed
Distrelrath to initiate a stop. The three officers approached
the Saturn, and were joined by a fourth officer.
As Bruening and Butler approached the passenger side of the
stopped car, they smelled a faint odor of marijuana. Butler
asked appellant if there were drugs inside their vehicle.
Appellant confirmed that he had smoked marijuana and had a
marijuana pipe in his pants pocket. Butler ordered appellant
to exit the car and conducted a pat-down search. In addition
to the pipe, the officer found a cut straw and two small bags
of white powder in his pockets. When asked, appellant said
that the white powder was cocaine. Subsequent tests revealed
that the powder was methamphetamine and a trace of
methamphetamine was found on the straw.
The other three occupants and the Saturn's interior were
also searched. As to Paige Tiedman, a coffee filter and
twenty-five methamphetamine pills were found in a baggie
under her dress. As to Gwendolyn Tingley, a small hand-held
Eagle torch was found in her purse. As to the second male in
the back seat, an empty box of Sudafed was found in his
pocket. The Target and Lowe's bags were located on the
floor beside appellant's feet. One of the Sudafed boxes
had already been opened, the pills had been removed, and
shoved into the second Sudafed box. The Lowe's bag only
contained a two-pound bottle of drain cleaner. A separate box
of non-pseudoephedrine Sudafed and various papers with
appellant's name on them were found in a black bag.
Appellant was ultimately indicted on three charges: illegal
assembly or possession of chemicals for the manufacturing of
drugs, a third-degree felony under R.C. 2925.041; aggravated
drug possession, a fifth-degree felony under R.C. 2925.11;
and possessing criminal tools, a fifth-degree felony under
R.C. 2923.24. Since appellant was indigent, a public defender
was appointed to represent him. At a pretrial held in May
2016, defense counsel informed the trial court that appellant
refused to speak with her every time she met him at the
county jail. In response, appellant stated that he was
assuming his counsel was intelligent and could read the same
discovery materials he was given, and, therefore, there was
no real reason for him to speak with her. He told the court
that he thought defense counsel might be working with the
prosecution to delay his trial so that the prosecution could
create more evidence against him. However, appellant did not
ask for a new attorney.
In the weeks following the pretrial, appellant filed copies
of letters he sent to his trial counsel. In some of the
letters, he asked counsel to send him copies of various
cases, statutes, and discovery items. In one of the letters,
he instructed counsel to move to dismiss the indictment on
the basis that one of the police officers involved in the
traffic stop lied under oath during his preliminary hearing.
The dispute centered upon whether the officers, upon
initially approaching the Saturn, said they smelled marijuana
or alcohol. A motion to dismiss was not filed.
A three-day jury trial ensued. After the state presented
three of its nine witnesses, appellant requested the trial
court to allow him to self-represent for the remainder of the
trial. In support, appellant asserted that defense counsel
did not subpoena certain witnesses to testify on his behalf,
and that counsel was refusing to ask questions of the state
witnesses that appellant believed necessary to set forth a
proper defense. He also argued that counsel refused to
request that the audio portion of a dash-cam tape of the
traffic stop be played for the jury when the video portion
was shown as part of Patrolman Distrelrath's testimony.
Appellant stated that the audio would establish that the
officers only referred to an odor of alcohol during the
traffic stop. After consulting with the prosecutor and