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State v. Douglas

Court of Appeals of Ohio, Fourth District, Hens

February 13, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
GERALD R. DOUGLAS, II, Defendant-Appellant.

          APPEARANCES: Jeremy A. Roth, Columbus, Ohio, for appellant.

          Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          WILLIAM H. HARSHA, JUDGE.

         {¶1} Following a trial in consolidated criminal cases, a jury found Gerald Douglas guilty of two counts of aggravated possession of drugs, one count of illegal manufacture of drugs, and one count of illegal assembly or possession of chemicals for the manufacture of drugs. The trial court sentenced Douglas to prison.

         {¶2} Initially Douglas contends that his convictions for illegal manufacture of drugs and illegal assembly or possession of chemicals for the manufacture of drugs were not supported by sufficient evidence and were against the manifest weight of the evidence. However, the trial record disproves those contentions. After the deputies executed a search warrant on Douglas's residence, he admitted to them that methamphetamine was made there a couple days earlier and that he owned pseudoephedrine pills in a cellophane wrapper found during the search. He admitted he and his girlfriend had discussed a plan to refute they had acted illegally if authorities showed up at the home. Douglas's ex-wife, Elizabeth McPherson, testified she had seen him make methamphetamine more than 20 times at his residence and he had given her methamphetamine the day she brought him home from jail in October 2015. And Patricia Hudnell testified she had purchased pseudoephedrine for Douglas a number of times and he was the only person she received methamphetamine from. In Douglas's residence the police found chemicals and materials required for the production of methamphetamine. The residence also included a cattle gate with a lock and chain that Douglas had installed, as well as an extensive video-surveillance security system. Based on this evidence the jury reasonably concluded that the state had established the elements of these offenses beyond a reasonable doubt; it did not clearly lose its way or create a manifest miscarriage of justice.

         {¶3} Next Douglas asserts that the trial court erred by rejecting his request to merge his convictions for illegal manufacture of drugs and illegal assembly or possession of chemicals for the manufacture of drugs. We reject his assertion because there is evidence that Douglas had possessed additional chemicals beyond those he had used to actually manufacture the methamphetamine. Thus Douglas committed the crimes separately.

         {¶4} Finally Douglas argues that the trial court erred in imposing a maximum 12-month prison sentence for one of his convictions for aggravated possession of drugs because the sentence is contrary to law and was not supported by findings to overcome the presumption of a minimum sentence. However, the sentence was within the permissible statutory range, the court considered the pertinent statutory purposes and guidelines, and the court was not required to make specific findings or give reasons for maximum or more than minimum sentences. Therefore the sentence is not clearly and convincingly contrary to law.

         {¶5} We affirm his convictions and sentence.

         I. FACTS

         {¶6} In Case No. 16CR0018, the Athens County Grand Jury returned an indictment charging Gerald Douglas with two counts of aggravated possession of drugs "[o]n or about October 25, 2015." The trial court later granted the state's motion to merge the second count into the first count. In Case No. 16CR0129, the Athens County Grand Jury returned an indictment charging Douglas with one count of illegal manufacture of drugs, one count of illegal assembly or possession of chemicals for the manufacture of drugs, and one count of aggravated possession of drugs. The first two counts of Case No. 16CR0129 included a date for the offenses of "[o]n or about October 26, 2015 to March 31, 2016." Douglas pleaded not guilty to the offenses, and the matter proceeded to a jury trial, which produced the following evidence.

         Case No. 16CR0018

         {¶7} On October 25, 2015 while on routine overnight patrol, Athens County Deputy Sheriff Chris Tomsha observed two vehicles in the rear of a business parking lot; after he approached them and they attempted to exit in opposite directions, he followed one of the vehicles. Deputy Sheriff Tomsha ran the license plate of the pickup truck he followed and stopped it after confirming that the registered owner of the license plate, Douglas, had an active warrant for his arrest. It also turned out the license plate was for a vehicle different from the one Douglas was driving and it had expired. Deputy Sheriff Tomsha informed Douglas of the warrant and arrested him. The officers conducted an inventory search of the truck and found a small container with white powder on the driver's seat and a bag with hamburger buns containing a white PVC pipe holding a glass pipe with white powder on the front passenger seat. Douglas told the deputy sheriff the white powder in the small container was makeup for his "old lady's face" and that he used the PVC pipe with the glass tube to smoke "tobacco and whatever." A field test of the white powder from the small container tested positive for methamphetamine. A subsequent test by the Ohio Bureau of Criminal Investigation confirmed the white powder from the small container constituted 1.3 grams of methamphetamine, and the pipe contained methamphetamine.

         Case No. 16CR0129

         {¶8} In March 2016, the Fairfield/Hocking/Athens Major Crimes Unit received information from the National Precursor Exchange System that from October 2015 through March 2016 Patricia Hudnell had made multiple purchases of pseudoephedrine, the primary chemical needed to manufacture methamphetamine, and that she had been blocked from making these purchases several more times. The police arrested her for a misdemeanor charge of attempted unlawful purchase of pseudoephedrine and interviewed her. She told officers that methamphetamine was being produced at Douglas's residence on River Road in Athens County, she had purchased pseudoephedrine for Douglas on numerous occasions, and she received methamphetamine and cash from him. At trial Hudnell testified that every time she bought pseudoephedrine, she took it to Douglas at his residence and that he was her only supplier of methamphetamine.

         {¶9} Based on the information Hudnell provided, the Major Crimes Unit obtained a search warrant for Douglas's residence and with the help of the Athens County Special Response Team ("Athens County SRT") executed the warrant on March 31, 2016. When officers arrived at the front entrance of the residence, they had to cut a thick locked chain, which was wrapped around a cattle gate. Bob Ashcraft, Douglas's employer, owned the home but did not reside there. He had allowed Douglas to live there for about two years by that time. He testified that Douglas had put the chain and lock on the gate.

         {¶10} While the officers were cutting through the chain, other members of the Athens County SRT approached the residence from a different path. Deputy Joel Banks saw Douglas's head appear from behind the home, so he directed Douglas to put his hands up and walk backwards towards him. Another officer took custody of Douglas and retrieved a glass pipe from his right front pocket. When asked twice about whether the pipe was a meth pipe or a crack pipe, Douglas responded, "it is whatever you want it to be." He later admitted smoking methamphetamine with it.

         {¶11} The law enforcement officers found items, including pills containing pseudoephedrine in a cellophane wrapper and two containers containing methamphetamine, under a black plastic trash bag where Douglas had been standing. .

         {¶12} The search of Douglas's residence uncovered several items used in the manufacture and use of methamphetamine, including lithium-stripped batteries, burnt aluminum foil, a glass smoking pipe, pipe cutters, lithium battery casings, a scale, Coleman fuel cans, PVC pipes, rock salt, a moisture absorber, pseudoephedrine pills, lighter fluid, plastic bags, a butane torch, a metal spoon with residue on it, and burn pits with remnants of charred battery casings.

         {¶13} The home also had an ingenious security-camera system that included two front porch cameras that were operated by pulleys and connected to video screens in Douglas's bedroom and bathroom. And they found two devices in a bathroom that, according to the state's expert witnesses, could be hydrogen chloride gas generators ("HCL generators") used in manufacturing methamphetamine. However, Douglas claimed that these devices were homemade sex toys and were not used to manufacture drugs.

         {¶14} Two state witnesses certified as experts in the identification of methamphetamine labs testified Douglas's residence constituted a methamphetamine lab. Both experts further testified that their conclusion would not change if the two items found in the bathroom were not actually HCL generators.

         {¶15} After the officers arrested Douglas their investigation led them to his ex-wife, Elizabeth McPherson, who testified that she had stopped at Douglas's residence in late October 2015, when Douglas was in jail after being arrested following his traffic stop in Case No. 16CR0018. She saw Douglas's girlfriend, Nikki George, preparing to make methamphetamine by crushing up pills in the proximity of lighter fluid, baggies, coffee filters, and a container. McPherson said she picked up Douglas from jail and dropped him back at his home. When McPherson came back later that day, she asked for methamphetamine and Douglas gave it to her. According to McPherson she saw Douglas make methamphetamine more than 20 times thereafter and he eventually showed her how to make it. She further testified that Douglas asked her to buy lighter fluid, cigar pipes, and lye, and that she often provided Douglas with Sudafed she bought, so he could manufacture meth.

         {¶16} Douglas admitted to the officers that he used meth, he owned the pills containing pseudoephedrine in a cellophane wrapper that were found near where he was standing, and two days before the search, meth had been manufactured in his residence. He further told the officers that he and his girlfriend had devised a plan about what to do or say about illegal activity in their home if authorities ever showed up. Douglas claimed that two other people in his home manufactured the methamphetamine. Later at trial Douglas testified that he let Carly Campbell stay at the home for a few days before the search and Ed Hudnell had come over with her.

         {¶17} The trial court instructed the jury that Douglas could be guilty of the offenses of illegal manufacture of drugs and illegal assembly or possession of chemicals for the manufacture of drugs as the ...


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