[Cite as State v Thomason, 2017-Ohio-7447.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                  ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                :       OPINION

                 Plaintiff-Appellee,          :
                                                      CASE NO. 2016-A-0027
        - vs -                                :

JENNIFER L. THOMASON,                         :

                 Defendant-Appellant.         :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2013
CR 00156.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).

Richard E. Hackerd, 231 South Chestnut Street, Ravenna, OH 44266 (For Defendant-
Appellant).



CYNTHIA WESCOTT RICE, P.J.

        {¶1}     Appellant, Jennifer L. Thomason, appeals from the judgment of the

Ashtabula County Court of Common Pleas, based on a jury verdict, finding her guilty of

aggravated possession of drugs, and illegal assembly or possession of chemicals for

the manufacture of drugs, and sentencing her to a total term of five years imprisonment.

Appellant contends her trial counsel was ineffective for failing to move to suppress the
evidence against her, and that her convictions are premised on insufficient evidence,

and are against the manifest weight of the evidence. We affirm.

        {¶2}   On March 5, 2015, Detective Sean Ward of the Ashtabula County Sheriff’s

Department received an email tip that Josh Hall was engaged in the manufacture of

methamphetamine at the Motel 6 in Harpersfield Township, Ashtabula County, Ohio.

Detective Ward contacted Detective George Cleveland. The detectives went to the

motel, and spoke with the desk clerk, who told them that Mr. Hall had rented two rooms

on the second floor, and that an associate of his had rented one on the first floor. She

further advised that Mr. Hall had checked out. She gave the detectives a pass key card,

which they used to explore the first floor room, No. 124, which had some personal items

in it, but no signs of methamphetamine manufacture. They proceeded to the second

floor and checked one of Mr. Hall’s former rooms, No. 227, which they found empty.

        {¶3}   Finally, the detectives went to Room No. 228. The pass key card opened

the door, but it was latched from inside.           Upon identifying themselves, a woman

(appellant), asked them to wait while she got dressed. The detectives waited three to

five minutes, hearing shuffling noises in the room, before Appellant opened the door

and came out into the hallway. She and Detective Ward moved a few feet down the

hallway to talk.

        {¶4}   Detective Cleveland remained at the door. He saw a man sitting on one of

the beds in the room, and asked the man, Michael Dixon, to come to the door. The

detective informed him of the complaint, and asked to see his identification. While Mr.

Dixon    retrieved   the   identification,   Detective   Cleveland   smelled   the   odor of

methamphetamine emanating from the room. Detective Cleveland, while a member of




                                                2
the Ashtabula County Sheriff’s Department, was also assigned to a task force of the

United States Drug Enforcement Agency in Cleveland, acting as the county liaison. He

has investigated more than 100 methamphetamine labs. Detective Cleveland followed

Mr. Dixon into the room, and spotted two Mason jars on the floor, one filled with clear

liquid. This was later identified as a methamphetamine precursor. He also spotted a

gray back pack. The detective testified at trial that the elements of methamphetamine

labs are often disassembled and transported in backpacks.

      {¶5}   Mr. Dixon and appellant were arrested. Detective Cleveland contacted the

local fire department to come ventilate the room; put on his protective gear; and began

processing the scene, finding the equipment and elements for manufacturing

methamphetamine. After he took Mr. Dixon and appellant downstairs, Detective Ward

put on his protective gear, and joined the search. The detectives later took certain

evidence from Room No. 221, which had also been rented by Mr. Hall, when advised by

cleaning staff the room contained suspicious items. They also found equipment relating

to the operation of a methamphetamine lab in a locked box in Mr. Dixon’s truck.

      {¶6}   On April 2, 2015, appellant was indicted on three counts. The first was for

illegal manufacture of drugs, in violation of R.C. 2925.04, a first-degree felony; the

second was for aggravated possession of drugs, in violation of R.C. 2925.11, a second-

degree felony; the third was for illegal assembly or possession of chemicals for the

manufacture of drugs, in violation of R.C. 2925.04, a second-degree felony. Appellant

pleaded not guilty to all charges. Plea negotiations failed. A jury trial commenced

January 4, 2016, and concluded the following day. On appellant’s Crim.R. 29 motion,

the trial court dismissed the first count of the indictment.    The trial court further




                                           3
dismissed a specification in the third count, alleging the criminal activity therein had

occurred in the vicinity of a juvenile or school, reducing the third count to a third degree

felony.

          {¶7}   The jury subsequently found appellant guilty on the second and third

counts of the indictment. A sentencing hearing went forward on March 1, 2016. By a

judgment entry filed March 7, 2016, the trial court sentenced appellant to three years

imprisonment on the second count, and five years imprisonment on the third count, that

term being mandatory. The trial court further assessed court costs, but waived the

mandatory fine attached to the third count, informed appellant she would be subject to

three years post release control, and suspended her driver’s license for six months.

          {¶8}   Appellant timely noticed this appeal, assigning three errors.     The first

provides:

          {¶9}   “Defendant-appellant was denied the effective assistance of counsel as

guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution and

Article I, Section X of the Ohio Constitution where his [sic] counsel failed to file a motion

to suppress.”

          {¶10} Appellant contends she was prejudiced by counsel’s failure to file a motion

to suppress evidence based upon the warrantless entry into the hotel room in which she

and the contraband were found.

          {¶11} To establish ineffective assistance of counsel, appellant must show that

counsel’s actions fell below an objective standard of reasonableness and that appellant

was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687–88, 693

(1984). Prejudice occurs where there is a reasonable probability that, but for counsel’s




                                              4
errors, the result of the trial would have been different. Id. at 694. When the ineffective

assistance claim is predicated upon the failure to submit a motion to suppress particular

evidence, “‘an appellant must point to evidence in the record showing there was a

reasonable probability the result of [the] trial would have differed if the motion had been

filed or pursued.’” State v. Woodard, 11th Dist. Ashtabula No. 2009-A-0047, 2010-Ohio-

2949, ¶14, quoting State v. Gaines, 11th Dist. Lake Nos. 2006-L-059 and 2006-L-060,

2007-Ohio-1375, ¶17. “Hence, to establish prejudice, an appellant must prove more

than a mere possibility that the motion could have been granted; rather, he or she must

show a reasonable probability that, but for the omission, the result of the proceedings

would have been different.” State v. DelMonico, 11th Dist. Ashtabula No. 2003-A-0022,

2005-Ohio-2902, ¶20.

       {¶12} “The Fourth Amendment safeguards: ‘[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched,

and the persons or things to be seized.’” (Emphasis sic.) State v. Andrews, 177 Ohio

App.3d 593, 2008-Ohio-3993, ¶19 (11th Dist.) Quoting the Fourth Amendment to the

United States Constitution.    “It is a ‘basic principle of Fourth Amendment law’ that

searches and seizures inside a home without a warrant are presumptively

unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980). The United States

Supreme Court has made clear that “in terms that apply equally to seizures of property

and seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to

the house.”    Id. at 590.    “Absent exigent circumstances, that threshold may not




                                            5
reasonably be crossed without a warrant.” Id. The exigent circumstances doctrine

mandates that, in the absence of a search warrant, probable cause plus exigent

circumstances are required to for a warrantless entry of a home. Kirk v. Louisiana, 536

U.S. 635, 637 (2002), citing Payton, supra, at 590.

      {¶13} As appellant points out, “a person’s hotel room, like a person’s home,

must be free of warrantless intrusions; any lesser standard is presumptively

unreasonable. Middleburg Hts. v. Theiss, 28 Ohio App.3d 1, 3 (8th Dist.1985), citing

Payton, supra. She ignores, however, the effect of R.C. 2933.33(A), which provides:

      {¶14} 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.

      {¶15} In this case, Detective Cleveland, a police officer with extensive

experience investigating methamphetamine labs, smelled the distinctive odor of the

drug emanating from appellant’s motel room.           This provided him with exigent

circumstances to conduct a warrantless search.

      {¶16} The first assignment of error lacks merit.

      {¶17} Appellant’s second assignment of error reads:

      {¶18} “Appellant was wrongfully convicted when the State failed to establish the

weight of the drug possessed which is an essential element of the crime of Aggravated

Possession of Drugs (ORC 2925.11(C)(1)(c).”




                                            6
       {¶19} Under this assignment of error, appellant argues that the state was

required to establish the actual amount of methamphetamine in the seized liquid before

that amount could be compared to the abstract “bulk amount,” in order to determine

whether she possessed more than the bulk amount. We disagree.

       {¶20} Appellant was charged and convicted for aggravated possession of drugs,

in violation of R.C. 2925.11, which provides, in pertinent part:

       {¶21} (A) No person shall knowingly obtain, possess or use a controlled
             substance analog.

       {¶22} “* * *

       {¶23} (C) Whoever violates division (A) of this section is guilty of one of
             the following:

       {¶24} (1) If the drug involved in the violation is a compound, mixture,
             preparation, or substance included in schedule I or II, with the
             exception of marihuana, cocaine, L.S.D., heroin, hashish, and
             controlled substance analogs, whoever violates division (A) of this
             section is guilty of aggravated possession of drugs. The penalty for
             the offense shall be determined as follows:

       {¶25} * * *

       {¶26} (c) If the amount of the drug involved equals or exceeds five times
             the bulk amount but is less than fifty times the bulk amount,
             aggravated possession of drugs is a felony of the second degree,
             and the court shall impose as a mandatory prison term one of the
             prison terms prescribed for a felony of the second degree.”

       {¶27} R.C. 2925.01(D)(1)(g) defines “bulk amount” as:

       {¶28} (g) An amount equal to or exceeding three grams of a compound,
             mixture, preparation, or substance that is or contains any amount of
             a schedule II stimulant, or any of its salts or isomers, that is not in a
             final dosage form manufactured by a person authorized by the
             Federal Food, Drug, and Cosmetic Act and the federal drug abuse
             control laws.

       {¶29} At trial, Anna Tabor, a scientist with the Ohio Bureau of Criminal




                                             7
Investigation, testified that she analyzed the liquid taken from appellant’s motel room;

that the liquid contained methamphetamine; and that the total weight of the liquid was

some 96.53 grams – more than five times the bulk amount (15 grams), but less than 55

times the bulk amount (165 grams). This liquid, however, was merely a precursor to

ingestible methamphetamine. Appellant argues the state was required to prove the

amount of methamphetamine in the precursor or the amount that would have resulted

from this liquid.

       {¶30} We review a trial court’s interpretation and application of statutes de novo.

State v. Owen, 11th Dist. Lake No. 2012-L-102, 2013-Ohio-2824, ¶17. A cardinal rule is

that the courts of Ohio must construe unambiguous statutes according to their plain

language. If the meaning of the statute is unambiguous and definite, it must be applied

as written and no further interpretation is necessary. State ex rel. Savarese v. Buckeye

Local School Dist. Bd. of Edn., 74 Ohio St. 3d 543, 545 (1996).

       {¶31} In her brief, appellant urges us to consider State v. Gonzales, which was

accepted by the Supreme Court of Ohio both on a certified conflict, and on discretionary

appeal. State v. Gonzales, 143 Ohio St.3d 1402, 2015-Ohio-2747, and 143 Ohio St.3d

1403, 2015-Ohio-2747. The court announced its decision December 23, 2016. State v.

Gonzales, Slip Opinion No. 2016-Ohio-8319. In relevant part, the court held that the

state must prove the weight of actual cocaine in a defendant’s possession, apart from

any admixture or filler. Id. at ¶22. In doing so, the court reasoned that the definition of

“cocaine” set forth at 2925.01(X) does not include the word “mixture.” Id. at ¶15, 19.

The definition of methamphetamine set forth at R.C. 2925.01(II), however, includes the

word “mixture.” In reaching its conclusion that the definition of “cocaine” means only the




                                            8
drug itself, the court in Gonzales specifically cited this difference in the definitions of

“cocaine” and “methamphetamine.” Gonzales, supra, at ¶19. Further, on March 6,

2017, the Supreme Court of Ohio issued a new opinion in Gonzales, on the state’s

motion for reconsideration. The court reversed its prior holding, and concluded that for

purposes of the drug possession statute, all the state must prove regarding weight of

cocaine is the total weight of the cocaine, including any filler. State v. Gonzales, 2017-

Ohio-777, ¶18.       Gonzales, in light of its recent schizophrenic procedural and

substantive history, does not necessarily inform our analysis.

       {¶32} As     noted,    R.C.    2925.01(I)(I)   defines    methamphetamine        as

“methamphetamine, any salt, isomer, or salt of an isomer of methamphetamine, or any

compound, mixture, preparation, or substance containing methamphetamine or any salt,

isomer, or salt of an isomer of methamphetamine.” There was no evidence to suggest

that the precursor at issue was a salt, isomer, or salt of an isomer of methamphetamine

or a compound, mixture, preparation, or substance containing such things. Despite this

point, Ms. Tabor testified she tested the bottles taken during the search and determined

that two of the bottles contained methamphetamine.

       {¶33} R.C. 2925.01(I)(I) presupposes that, regardless of the conditional medium,

a compound, mixture, preparation, or substance must contain methamphetamine to be

considered, as a matter of law, methamphetamine. Although a precursor, by definition,

is the substance from which methamphetamine is formed, there was still some amount

of methamphetamine in the mixture.       And, while the precursor may not have been

usable methamphetamine and its weight contributed to a more elevated charge, the

unambiguous language of R.C. 2925.01(I)(I) states that a mixture or substance that




                                            9
contains methamphetamine is methamphetamine. The precursor (qua mixture,

substance, or preparation) seized during the search contained some undisclosed

amount of methamphetamine and, as a result, it is methamphetamine as defined by the

legislature. There was accordingly sufficient evidence that the precursor was a mixture,

substance, or preparation that contained methamphetamine pursuant to R.C.

2925.01(I)(I).

       {¶34} Appellant contends, however, that the precursor was not a drug because

“drug” is defined as “any other article * * * intended to affect * * * any function of the

body * * *.” R.C. 2925.01 and R.C. 4729.01(E)(3). Because the precursor was not

intended to affect the body’s function, appellant maintains it is not a drug and cannot be

a basis for the charge of aggravated possession of drugs.          Although, on its face,

appellant makes an interesting point, methamphetamine is a drug and, as factually

strange as it may be, the precursor is statutorily methamphetamine in this case.

       {¶35} We acknowledge the ridiculousness of convicting an individual of

aggravated possession of drugs even though the “drug,” in its existing form, was not

marketable or useable. We must, however, apply the unambiguous language of the law

as written.      And unless or until the legislature changes the definition of

methamphetamine to exclude compounds, mixtures, preparations, or substances that

are not useable, strange and arguably absurd results will be achieved. In light of the

statutory definition of methamphetamine, the state presented sufficient evidence to

establish the total weight of the liquid precursor was more than five times the bulk

amount.

       {¶36} Appellant’s second assignment of error lacks merit.




                                           10
      {¶37} Appellant’s third assignment of error asserts:

      {¶38} “The state failed to establish possession of the drugs or chemicals as

required for conviction of counts two and/or three.”

      {¶39} Under this assignment of error, appellant argues that possession is a

necessary element for conviction of either aggravated possession of drugs, or illegal

assembly or possession of chemicals for the manufacture of drugs. She asserts the

state failed to present sufficient evidence she possessed either the methamphetamine

found in her room, or the equipment for the methamphetamine lab, and, further, that her

convictions of each crime are against the manifest weight of the evidence.

      {¶40} Appellant cites to R.C. 2925.01(K), which provides: “‘Possess’ or

‘possession’ means having control over a thing or substance, but may not be inferred

solely from mere access to the thing or substance through ownership or occupation of

the premises upon which the thing or substance is found.” The Mason jars and the

backpack were both next to Mr. Dixon’s bed, not hers; Mr. Dixon testified on her behalf

at trial, and firmly maintained that the drugs and the methamphetamine lab equipment

were his sole property.

      {¶41} A “sufficiency” argument raises a question of law as to whether the

prosecution offered some evidence concerning each element of the charged offense.

State v. Windle, 11th Dist. Lake No.2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he proper

inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury

could have found the essential elements of the crime proven beyond a reasonable

doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062 ¶9 (11th Dist.)

      {¶42} In contrast, a court reviewing the manifest weight observes the entire




                                            11
record, weighs the evidence and all reasonable inferences, considers the credibility of

the witnesses and determines whether, in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. State v. Schlee, 11th Dist. Lake No. 93-L-

082, 1994 WL 738452, *14-*15 (Dec. 23, 1994).

      {¶43} The state argues it presented evidence that appellant had “constructive”

possession of the methamphetamine and drug paraphernalia. In State v. Adams, 11th

Dist. Ashtabula No. 2012-A-0025, 2013-Ohio-1603, ¶35, this court held:

      {¶44} “Possession of drugs can be either actual or constructive.” State v. Fogle,

11th Dist. No.2008–P–0009, 2009–Ohio–1005, ¶28. “Constructive possession exists

when an individual knowingly exercises dominion and control over an object, even

though that object may not be within his immediate physical possession.” State v.

Hankerson, 70 Ohio St.2d 87 (1982), syllabus. “Even if the contraband is not in a

suspect’s ‘immediate physical possession,’ the suspect may still constructively possess

the item, so long as the evidence demonstrates that he “was able to exercise dominion

and control over the controlled substance.” Fogle at ¶28, citing State v. Lee, 11th Dist.

No.2002-T-0168, 2004-Ohio-6954, ¶41. To prove constructive possession, “[i]t must

also be shown that the person was conscious of the presence of the object.”

Hankerson, supra, at 91. Further, constructive possession can be proved solely by

circumstantial evidence. Adams, supra, at ¶38.

      {¶45} The state introduced evidence that appellant was living in the room at the

Motel 6 where the methamphetamine precursor, which, as discussed above, was

sufficient to establish aggravated possession of drugs, as well as the lab equipment was




                                            12
found. It introduced evidence that it took from three to five minutes for appellant to

answer the door once Detectives Ward and Cleveland tried to open it, and both

detectives testified they heard shuffling noises in the room during this interval.

Detective Cleveland testified the backpack containing the lab equipment was soaked

from   an   open   container   of   lighter   fluid,   which   is   used   in   manufacturing

methamphetamine.     There was evidence the trash container in the room contained

coffee filters and cotton balls soaked with solvent – all used in the manufacture of

methamphetamine. From the totality of this evidence, a jury could infer that appellant

and Mr. Dixon were in the process of assembling or using the methamphetamine lab

when the detectives arrived, and hastily disassembled it. Thus, the state introduced

evidence that appellant could exercise dominion and control over the precursor and

methamphetamine lab equipment, and that she was aware they were in the motel room.

The state introduced sufficient evidence of constructive possession of each crime, and

the jury’s conclusion Ms Thomason possessed the lab equipment and chemicals was

not against the manifest weight of the evidence.

       {¶46} The third assignment of error lacks merit.

       {¶47} The judgment of the Ashtabula County Court of Common Pleas is

affirmed.



TIMOTHY P. CANNON, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only.




                                              13
