Court of Appeals of Ohio, Fifth District, Muskingum
Criminal Appeal from the Court of Common Pleas, Case No.
Plaintiff-Appellee D. MICHAEL HADDOX PROSECUTING ATTORNEY
GERALD V. ANDERSON II ASSISTANT PROSECUTOR
Defendant-Appellant ERIC J. ALLEN THE LAW OFFICE of ERIC J.
John W. Wise, P. J. Hon. William B. Hoffman, J. Hon. Craig R.
Defendant-appellant Ivan J. Smith appeals his convictions
entered in the Muskingum County Court of Common Pleas
following a jury trial.
Plaintiff-appellee is the State of Ohio.
OF THE FACTS AND CASE
The relevant facts and procedural history are as follows:
On July 13, 2016, Muskingum County Sheriffs dispatch received
a complaint about the odor of marijuana coming from the
residence located at 128 Hamline Ave., Zanesville, Ohio. The
complaint also stated that the occupants at the residence
were trafficking in drugs.
Colleena Johnson ("Colleena") and Appellant lived
at 128 Hamline Ave., 130 Hamline Ave. was vacant at the time.
(Trial, Vol. I, p. 157, 159; Vol. II, p. 455). Their
residence is a duplex with 130 Hamline Ave., wherein 128 is
on the south side and 130 is on the north side. (T. at 157).
In response to the complaint, officers approached the
residence to conduct a "knock and talk". (T. at
152-53). Officers noticed the odor or raw marijuana, which
became stronger when Colleena came out after the officers
knocked. (T. at 155-56). Colleena refused to give consent for
a search of the residence. Officers secured the residence
while Detective Matt Wilhite ("Det. Wilhite") left
to procure a search warrant. (T. at 156). Colleena, who was
not permitted to re-enter the residence without being
accompanied by an officer, left on foot. It took a little
over an hour for Det. Wilhite to return with a signed search
Additionally, officers received consent from Dan Reinstetle,
the owner of the duplex, to search the vacant 130 Hamline
Ave. residence to confirm the odor of marijuana was not
coming from it. (T. at 159). Officers also found nine (9)
marijuana plants outside, on the south side (128 side) of the
duplex, in pots that resembled pots that were later
discovered inside 128 Hamline Ave. (T. at 167). The marijuana
plants outside had labels on them to identify their strand.
(T. at 169).
Inside 128 Hamline Ave., officers found Christmas tags that
read "To Ivan, From Col", mason jars with
labelling, and Ziploc vacuum sealed bags with handwriting
that was similar to the handwriting on the labels on the
marijuana plants outside. (T. at 170-71, 173). There was also
marijuana residue on the bottom of the mason jars and the
labels for other strands of marijuana. (T. at 171-72).
Officers also found five (5) butane cans inside the
residence, which Det. Wilhite testified were frequently used
to process marijuana to manufacture hashish. (T. at 172).
Hashish was also found. (T. at 467-69).
During the search, officers also found duct tape that matched
duct tape on the marijuana plants outside, as well as duct
tape that would later be found in the basement and at a
storage unit. (T. at 173-74).
A book named Cannabis Indica was found next to a cedar chest
in a room upstairs. (T. at 176). Inside that cedar chest were
four (4) more mason jars with labels, vacuum sealed bags, and
a plastic tote that had Appellant's fingerprint on it.
(T. at 177, 392-94). There was a desk in the room that had
mail and multiple documents in the name of Appellant. (T. at
83-84, 205). Officers also found a Styrofoam cup with
methamphetamine inside of it. (T. at 180, 182, 301, 467-69).
In a closet, behind some clothes was a staircase that led to
the attic, which had been secured by coat hanger wire. (T. at
184). The attic can only be accessed from 128 Hamline Ave.,
not from 130 Hamline Ave. (T. at 166, 269-70). In the attic,
eighty-four (84) full plants, fresh, with wet and damp soil,
were found, as well as a large, plastic, industrial grinder
with ground-up marijuana inside, more mason jars, a vacuum
sealer, and other dried marijuana were found. (T. at 185,
188-89, 317-18). Appellant's fingerprints were on the
grinder. (T. at 189, 392-94). There was no lighting in the
attic and the temperature was above 100 degrees. (T. at 185,
Det. Wilhite testified about his knowledge of marijuana and
that marijuana plants cannot grow in a space of that
temperature and with no light, concluding that the plants had
to have recently been placed there. (T. at 185-86, 188, 273).
Colleena would not have had time to move the plants to the
attic. (T. at 276).
In the basement officers found three (3) constructed
hydroponic grow rooms wrapped in heavy black plastic with
reflective plastic on the inside, grow lights, hydroponic
stems, filters, all used to grow marijuana. (T. at 192).
There were also hydroponic clay balls and bamboo sticks,
which matched hydroponic clay balls and bamboo sticks that
were found with the outside marijuana plants. (T. at 194).
There was a box for grow lights with the name Howard Bailey
on it, who previously worked at Iroc's Hair Design Studio
("Iroc's"), which is the barbershop business
that Appellant owns, located at 125 State Street. (T. at 196,
253). There was blue rope and blue pulleys holding up the LED
grow lights from the ceiling. (T. at 196). Howard
Bailey's fingerprint was on one of the LED grow lights,
which he testified he had previously sold to Appellant. (T.
at 255, 299, 366, 369). There was also Appellant's
yellow-hooded sweatshirt, which he had been seen wearing
around town, and the matching pants were located in his
vehicle, parked outside. (T. at 197, 231). Finally, a bag of
packaged (processed) marijuana was found inside the dryer.
(T. at 414).
Appellant's Ford Explorer was parked at 128 Hamline Ave.
and was also searched. (T. at 229-31). Located in the vehicle
was a blue pulley, a pair of yellow pants, Appellant's
wallet and identification, credit cards, and numerous
documents and receipts, including an electric bill for
Iroc's, a Huntington Bank bill in the name of Appellant,
and another Huntington Bank bill in the name of Ivan J. Smith
dba Iroc's Hair Design Studios. (T. at 231-32, 236,
In the cedar chest was also a payment book/receipts for Five
Star Store It in the name of Appellant and his company
Iroc's. (T. at 203-04). That storage unit was rented in
Appellant's name for Iroc's. (T. at 252-53, 409). A
K9 alerted to the presence of narcotics in the storage unit
that Appellant/Iroc's was renting. (T. at 332). A search
of the storage unit revealed 2x4 framing, ventilation piping
with heavy plastic stapled to it, vacuum sealed bags with
similar writing as those found at 128 Hamline, reflective
plastic, and hydroponic clay balls, all similar to those
found at 128 Hamline Ave. (T. at 215-217, 221-223). There was
also a hydroponic water pump system, further documents in the
name of Appellant, heavy black plastic and duct tape similar
to that found in the basement at 128 Hamline Ave., and a hair
salon chair with marijuana residue on it. (T. at 223, 226).
The receipt for Indoor Gardens found in the Ford Explorer led
detectives to visit Indoor Gardens and retrieve the merchant
copy which showed that Appellant purchased grow lights and
other materials using his Huntington Bank business account
card. (T. at 235, 248-252, 362-363).
The scene was processed, evidence collected, and sent away
for testing and analysis. (T. at 254). The grinder, plastic
bin, and lighting systems were processed for fingerprints.
(T. at 337-338, 346-347). Five (5) of the fingerprints came
back identifying Appellant, one fingerprint belonged to
Howard Bailey. Colleena's prints were excluded from being
on the evidence. (T. at 392, 394).
The marijuana was tested and weighed and came back with a
combined weight of 1.28 kilograms, or 1, 280 grams. (T. at
439, 445-446). The hashish was tested and weighed 13.05
grams, the methamphetamine was tested and weighed less than
0.10 grams. (T. at 467-469).
During the search, Appellant called Detective Todd Kanavel.
Appellant was upset and asking why they were searching the
house. (T. at 415). Appellant called back asking if he needed
to turn himself in, and while referring to the grow lights,