[Cite as State v. Shaffer, 2018-Ohio-205.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                    )

STATE OF OHIO                                         C.A. No.      17AP0001

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RANDY D. SHAFFER II                                   COURT OF COMMON PLEAS
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   2016 CRC-1 000263

                                  DECISION AND JOURNAL ENTRY

Dated: January 22, 2018



        TEODOSIO, Judge.

        {¶1}     Appellant, Randy Shaffer II, appeals from his conviction for illegal assembly or

possession of chemicals for the manufacture of drugs in the Wayne County Court of Common

Pleas. We affirm.

                                                 I.

        {¶2}     In June of 2016, an investigation into multiple, recent pseudoephedrine purchases

by C.T. and L.D. prompted authorities to procure a search warrant for the individuals’ residence

on Sherwood Drive in Wooster. On June 25, 2016, the Wayne County Sheriff’s Office executed

the search warrant at the suspected methamphetamine lab and discovered an abundance of items

related to the manufacture of methamphetamine. Four individuals were also inside of the

residence, including Mr. Shaffer.
                                                  2


       {¶3}    Mr. Shaffer was charged with illegal assembly or possession of chemicals for the

manufacture of drugs, a felony of the third degree. After a bench trial, Mr. Shaffer was found

guilty of the offense and the trial court sentenced him to three years in prison.

       {¶4}    Mr. Shaffer now appeals from his conviction and raises one assignment of error

for this Court’s review.

                                                 II.

                                  ASSIGNMENT OF ERROR

           SHAFFER’S CONVICTION FOR ILLEGAL ASSEMBLY OR
           POSSESSION OF CHEMICALS FOR THE MANUFACTURE OF DRUGS
           WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

       {¶5}    In his sole assignment of error, Mr. Shaffer argues that his conviction is based on

insufficient evidence. We disagree.

       {¶6}    “A sufficiency challenge of a criminal conviction presents a question of law,

which we review de novo.” State v. Spear, 9th Dist. Summit No. 28181, 2017-Ohio-169, ¶ 6,

citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “Sufficiency concerns the burden of

production and tests whether the prosecution presented adequate evidence for the case to go to

the jury.” State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 25, citing Thompkins

at 386. “The relevant inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.” Id., quoting State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus. However, “we do not resolve evidentiary conflicts or assess the

credibility of witnesses, because these functions belong to the trier of fact.” State v. Hall, 9th

Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.
                                                3


       {¶7}    Mr. Shaffer was convicted of illegal use or possession of chemicals for the

manufacture of drugs under R.C. 2925.041(A), which provides: “No person shall knowingly

assemble or possess one or more chemicals that may be used to manufacture a controlled

substance in schedule I or II with the intent to manufacture a controlled substance in schedule I

or II * * *.” Moreover, “[t]he assembly or possession of a single chemical that may be used in

the manufacture of a controlled substance in schedule I or II, with the intent to manufacture a

controlled substance in either schedule, is sufficient to violate this section.” R.C. 2925.041(B).

“Methamphetamine is classified as a Schedule II controlled substance and a stimulant under R.C.

3719.41, Schedule II (C)(2).” State v. Yoakem, 9th Dist. Wayne No. 14AP0016, 2016-Ohio-745,

¶ 7. “A person acts knowingly, regardless of purpose, when the person is aware that the person’s

conduct will probably cause a certain result or will probably be of a certain nature.” R.C.

2901.22(B). “‘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.” R.C. 2925.01(K).

       {¶8}    Mr. Shaffer argues his conviction is based on insufficient evidence because no

evidence was presented that, on June 25, 2016, he assembled or possessed any of the

methamphetamine-related supplies discovered at the residence or that he provided any of the

supplies to C.T. for the manufacture of methamphetamine. He further argues that no evidence

was presented to link his purchase of pseudoephedrine on June 24, 2016, to the pseudoephedrine

that was discovered in the residence on June 25, 2016. Therefore, he argues that his case is

analogous to State v. Morlock, 9th Dist. Summit Nos. 26954, 26955, & 26956, 2014-Ohio-4458.
                                               4


       {¶9}   In a split decision1, this Court reversed convictions for illegal manufacture of

drugs and illegal assembly or possession of chemicals for the manufacture of drugs due to

insufficient evidence in Morlock. Id. at ¶ 28. The testimony presented at trial showed that Mr.

Morlock had not brought any such chemicals with him to the residence on October 28, 2012, for

manufacturing methamphetamine, and that the last time he brought such chemicals to the

residence was two weeks prior to October 28, 2012. Id. at ¶ 26. Although there was testimony

that Mr. Morlock had brought supplies over for the manufacture of methamphetamine five or six

times in the prior month, no evidence was presented that the particular chemicals found at the

residence on October 28, 2012, were ever assembled or possessed by Mr. Morlock. Id. at ¶ 27.

Accordingly, this Court concluded “[t]here was no evidence that, on or about October 28, 2012,

Mr. Morlock possessed any chemicals or supplied any chemicals to make methamphetamine to *

* * anyone at 92 Willard.” (Emphasis added.) Id. at ¶ 26.

       {¶10} At trial in the case sub judice, the State presented the testimony of two witnesses.

Jason Waddell, the senior agent in the Medway Drug Enforcement Agency, testified that on June

25, 2016, Sergeant Joe Copenhaver of the Wayne County Sheriff’s Department called him to

request his services in dismantling a clandestine methamphetamine lab at 636 Sherwood Drive in

Wooster. Agent Waddell testified that he discovered many items in the residence that were



       1
           The dissent stated that evidence was presented that Mr. Morlock “would routinely
provide various ingredients necessary for the production of methamphetamine in exchange for
some of the finished product.” Morlock at ¶ 32 (Carr, J., dissenting). Mr. Morlock would drop
off some ingredients and then return to the residence merely hours later to use his share of the
newly manufactured methamphetamine. Id. On October 28, 2012, Mr. Morlock and three others
were arrested inside of the residence while preparing to use four lines of methamphetamine that
were laid out on a speaker before them. Id. Therefore, the dissent concluded that a reasonable
inference could be drawn that Mr. Morlock had provided ingredients on or about October 28,
2012, for the most recently manufactured batch of methamphetamine and had returned hours
later to use his share of the drugs when he was arrested. Id.
                                                5


related to the manufacture of methamphetamine. Inside of a closet, he discovered ice packs that

had been cut open with some of the ammonium nitrate removed. In a bedroom, he discovered

approximately thirty syringes and a burnt spoon with residue and a cotton swab on top. Inside of

a “lazy Susan” in the kitchen, he discovered a half-gallon bottle of muriatic acid, measuring

cups, and several funnels. One of the funnels had a white powder residue on it that was tested on

litmus paper at the scene and came back as a “strong base,” which Agent Waddell testified is

“indicative of what we see when a funnel would be used to add sodium hydroxide, a crystal drain

cleaner type.” On a small table in the kitchen, he discovered several cans of lighter fluid and a

can of acetone. In an upper kitchen cabinet, he discovered an orange and clear plastic spice

grinder with a white powder in it. The white powder tested negative for methamphetamine, but

Agent Waddell testified that these types of grinders are commonly used to grind up

pseudoephedrine pills in methamphetamine labs. Inside of the kitchen trash can, he discovered

another can of lighter fluid, an empty 40-count box of pseudoephedrine, and a lithium battery

that had been cut open with the lithium removed. Inside of two trash cans the basement, he

discovered another empty can of lighter fluid, several one-liter plastic bottles containing some

water, a gallon-size Ziploc bag containing empty pseudoephedrine packs, and empty ice pack,

and a lithium battery that had been cut open with the lithium removed.

       {¶11} Agent Waddell testified that while he took a break outside of the residence, some

Sheriff’s deputies discovered two sealed buckets in the basement of the residence. They opened

one up and observed kitty litter inside. Agent Waddell testified that kitty litter is used as an

odor-absorbing layer in the manufacture of methamphetamine. He went back into the basement

to further inspect the buckets and he found several sealed plastic bottles containing an off-white
                                                  6


or off-pink sludge with a black chunk of material inside, which he testified is indicative of a one-

pot methamphetamine lab.

       {¶12} Wayne County Sheriff’s Deputy Paul Gramlich testified that he obtained a search

warrant for 636 Sherwood Drive to look for items involved in the manufacture of

methamphetamine and other drug-related items. He also participated in the execution of that

search warrant as a perimeter unit while the Special Weapons and Tactics (“SWAT”) team

entered the residence. Four individuals were located inside of the residence when the search

warrant was executed: Mr. Shaffer, C.T., K.D., and Z.R. The SWAT team reported a strong

chemical odor coming from inside the residence and identifiable methamphetamine-related items

located in plain view once they entered the residence.

       {¶13} After Agent Waddell was finished inside, Deputy Gramlich entered the residence

with Deputy Berkey to collect evidence.         Deputy Gramlich testified that they discovered

hypodermic syringes, an orange pill grinder, a blue plastic container, pH testing strips, a receipt,

a package of pseudoephedrine, a piece of foil with a pen cylinder on it, a metal spoon with

residue and a cotton swab on it, a light bulb fashioned into a smoking device, a mirror with razor

blades, some powder residue, another metal spoon with a cotton swab on it, a receipt for

pseudoephedrine, gloves and personal protective garments, multiple lottery tickets which he

testified are commonly used to create bindles for packaging narcotics, two buckets containing

kitty litter, a dust mask, multiple containers and funnels, a bottle of “stripper,” a Ziploc bag

containing rolled up coffee filters, a Ziploc bag containing a saturated towel, a Ziploc bag

containing a white residue, a container with some type of salt in it, a trash can containing “what

appeared to be meth trash, coffee filters, bottles, things of that nature[,]” a blue bucket containing

multiple “cooking vessels” in it, a bucket of salt, clear tubing, a bucket of kitty litter, multiple
                                                 7


plastic bottles with the labels removed, and a receipt for acetone. He also found metal fittings

and a Tennessee driver’s license for L.D. inside of K.D.’s purse. L.D.’s name and license

number had been associated with recent pseudoephedrine purchases linked to 636 Sherwood

Drive.

         {¶14} BCI testing revealed trace amounts of methamphetamine on the spoon with cotton

swab and residue, trace amounts of pseudoephedrine on the pill grinder, and trace amount of

methamphetamine in the blue container.

         {¶15} Deputy Gramlich spoke to Mr. Shaffer while he was in a police cruiser at the

scene. Deputy Gramlich testified that he read Mr. Shaffer his rights and that Mr. Shaffer

indicated he understood those rights and agreed to speak to the deputy. Mr. Shaffer told the

deputy that C.T. cooked methamphetamine in the residence and “on at least one occasion he had

purchased a box of pseudoephedrine for [C.T.] for that purpose.” Mr. Shaffer told the deputy

“[h]e believed that there may be a plate inside the home that [C.T.] had used for drying the

methamphetamine on[,]” but he was not sure. He also told the deputy that he was at the

residence “hanging out” with Z.R. and that he had used methamphetamine inside of the

residence.

         {¶16} Deputy Gramlich’s body camera recorded video of his conversation with Mr.

Shaffer in the police cruiser, which was entered into evidence at trial. The body camera video

corroborates the deputy’s testimony. In the video, Mr. Shaffer admits to buying one “box” for

C.T. Deputy Gramlich testified that the terms “box” or “boxes” are commonly used to refer to

pseudoephedrine blister pack boxes. Mr. Shaffer admits in the video that while at the residence,

he “got high a little bit.” When asked if he has seen C.T. “cooking off bottles or drying the

stuff[,]” Mr. Shaffer responds, “No, I don’t, I don’t, actually yeah, I’ve seen drying plates in the
                                                8


kitchen.” When questioned further about the use of the plates, the location of C.T.’s “stuff,” and

how he obtains “it” from C.T., Mr. Shaffer responds, “I don’t think I, I don’t even care about the

shit. I don’t fucking cook it and I don’t like it. I know they cook it * * *.” The deputy inquires

as to what type of pseudoephedrine box Mr. Shaffer purchased, and Mr. Shaffer appears unsure

of which type he purchased.       As the deputy questions Mr. Shaffer further regarding his

pseudoephedrine purchase, he asks, “Did he drive you up there * * *?” Mr. Shaffer responds,

“No, she’s been driving me for it * * *.” The deputy asks where L.D. is at and Mr. Shaffer

responds, “I don’t know who that is.”

       {¶17} Deputy Gramlich spoke to Mr. Shaffer again at the Wayne County Jail. The

deputy’s body camera recorded video of the conversation, which was entered into evidence at

trial. In the video, the deputy reads Mr. Shaffer a copy of the search warrant and briefly explains

the illegal assembly charge. He informs Mr. Shaffer that he knows Mr. Shaffer has purchased

boxes for “them” at least twice. Mr. Shaffer then admits to the deputy that “[he] tried to get one

Thursday and [he] got one the other night.”

       {¶18} Ohio law prohibits individuals without a valid prescription for pseudoephedrine

from purchasing “[t]hree and six tenths grams within a period of a single day [or n]ine grams

within a period of thirty consecutive days.” R.C. 2925.56(A)(1). The National Precursor Log

Exchange (“NPLEx”) is an “electronic system for tracking sales of pseudoephedrine products

and ephedrine products on a national basis * * *.” R.C. 3715.05(A)(6). The NPLEx system will

notify a retailer or distributor with a “stop-sale alert” to block any attempted purchase of

pseudoephedrine if completion of the sale would violate the purchase limits set forth in R.C.

2925.56(A)(1) or federal law. R.C. 3715.05(A)(13); R.C. 3715.052(B)(1). Deputy Gramlich

testified as to his review and investigation of the NPLEx reports detailing the successful
                                                9


purchases and attempted or blocked purchases made by Mr. Shaffer, C.T., K.D., and L.D. Those

four NPLEx reports, which corroborate the deputy’s testimony as to their contents, were all

entered into evidence at trial.

       {¶19} The NPLEx reports indicate that, on June 22, 2016, Mr. Shaffer attempted to buy

pseudoephedrine at the Wooster Walmart at 9:51 A.M., but the purchase was blocked. Six

minutes later, at 9:57 A.M., C.T. purchased pseudoephedrine at the same store. Five minutes

later, at 10:02 A.M., K.D. attempted to purchase pseudoephedrine at the same store, but the

purchase was blocked. Six minutes later, at 10:08 A.M., someone using L.D.’s identification

attempted to purchase pseudoephedrine at the same store, but the purchase was blocked. Deputy

Gramlich testified that it was later determined Z.R. had attempted to use L.D.’s identification for

that purchase.

       {¶20} The NPLEx reports also indicate that, on June 24, 2016, Mr. Shaffer purchased

pseudoephedrine at the Massillon Rite Aid at 8:21 P.M. Nine minutes later, at 8:30 P.M.,

someone using L.D.’s identification purchased pseudoephedrine at the same store. Thirty-six

minutes later, at 9:06 P.M., K.D. purchased pseudoephedrine at the Orrville Rite Aid. Six

minutes later, at 9:12 P.M., C.T. attempted to purchase pseudoephedrine at the same store, but

the purchase was blocked.

       {¶21} As to Mr. Shaffer’s sufficiency arguments, we first note that he erroneously refers

to his indictment as alleging he committed this offense “on June 25, 2016.” The indictment

actually alleges that Mr. Shaffer committed this crime “on or about June 25, 2016.” (Emphasis

added.) This Court disagrees with Mr. Shaffer’s series of related arguments that no evidence

was presented to: (1) prove that he assembled or possessed any of the methamphetamine-related

supplies discovered at the residence; (2) prove that he provided any of the supplies to C.T. for
                                              10


the manufacture of methamphetamine; or (3) link his purchase of pseudoephedrine on June 24,

2016, to the pseudoephedrine that was discovered in the residence on June 25, 2016. Deputy

Gramlich testified, and his body camera video confirmed, that Mr. Shaffer admitted to buying

one box of pseudoephedrine for C.T., admitted that he knew the others cooked

methamphetamine, had observed some drying plates in the kitchen, and admitted to getting high

in the residence. In the deputy’s body camera video from the interview at the Wayne County

Jail, Mr. Shaffer admits that he unsuccessfully attempted to purchase a box of pseudoephedrine

on Thursday, but was successful in purchasing a box of pseudoephedrine on another night. Mr.

Shaffer’s NPLEx report indicates that he unsuccessfully attempted to buy pseudoephedrine at the

Wooster Walmart on June 22, 2016, but successfully purchased a 40-count box of Rite Aid

Ibuprofen Cold & Sinus containing pseudoephedrine at the Massillon Rite Aid on June 24, 2016.

The search warrant was executed the very next day on June 25, 2016, and Agent Waddell

testified that he found an empty 40-count box of pseudoephedrine inside of the kitchen trash can

along with an overwhelming amount of items related to the manufacture of methamphetamine.

The NPLEx reports further indicate that the individuals who were present when the search

warrant was executed, including Mr. Shaffer, had very recently been purchasing or attempting to

purchase pseudoephedrine products in the same stores, on the same days, and around the same

times.

         {¶22} We also disagree with Mr. Shaffer’s argument that his case is analogous to the

Morlock case and instead conclude that Morlock is distinguishable from the instant case. In

Morlock, this Court refrained from concluding that Mr. Morlock’s actions performed two weeks

prior to October 28, 2012, were committed “on or about October 28, 2012[,]” as stated in the

indictment. See Morlock, 2014-Ohio-4458, at ¶ 26. Here, Mr. Shaffer admitted to buying
                                                11


pseudoephedrine for C.T. and his NPLEx report confirmed the purchase as being made on June

24, 2016, only one day prior to the execution of the search warrant, which is sufficient to satisfy

the indictment’s “on or about June 25, 2016” language. See State v. Forney, 9th Dist. Summit

No. 24361, 2009-Ohio-2999, ¶ 10 (stating “[t]he State is only required to prove that the offense

occurred reasonably near the date specified in the indictment” in a case where the indictment

alleged the offense took place “on or about” a particular date.). In Morlock, no evidence was

presented that Mr. Morlock assembled or possessed the particular chemicals found at the

residence on October 28, 2012. Id. at ¶ 27. However, in the case sub judice, Mr. Shaffer

admitted to recently buying pseudoephedrine for C.T., whom he knew was manufacturing

methamphetamine. Mr. Shaffer purchased a 40-count box of a pseudoephedrine product on June

24, 2016, and testimony at trial established that an empty 40-count box of pseudoephedrine was

found inside of the kitchen trash can among other methamphetamine-related items on June 25,

2016. Thus, we cannot conclude that the fact pattern in Morlock is comparable to the fact pattern

in Mr. Shaffer’s case.

       {¶23} After reviewing the evidence contained in the record in a light most favorable to

the prosecution, we conclude that the State satisfied its burden of production and presented

sufficient evidence, if believed, from which a rational trier of fact could have concluded that, on

or about June 25, 2016, Mr. Shaffer knowingly assembled or possessed pseudoephedrine pills

with the intent to manufacture methamphetamine.

       {¶24} Mr. Shaffer’s sole assignment of error is overruled.

                                               III.

       {¶25} Mr. Shaffer’s sole assignment of error is overruled. The judgment of the Wayne

County Court of Common Pleas is affirmed.
                                                12


                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



SCHAFER, P. J.
CARR, J.
CONCUR.


APPEARANCES:

MATTHEW J. MALONE, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
