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State v. Struble

Court of Appeals of Ohio, Eleventh District, Lake

December 29, 2017

STATE OF OHIO, Plaintiff-Appellee,
MAX S. STRUBLE, Defendant-Appellant.

         Criminal 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).


          THOMAS R. WRIGHT, J.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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 seat.

         {¶4} 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.

         {¶5} 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 store, Lowe's.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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 ...

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