[Cite as State v. Isaac, 2017-Ohio-7139.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Earle E. Wise, Jr., J.
-vs-
                                                   Case No. 15CA87
TRACY ISAAC

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Court of
                                               Common Pleas, Case No. 2014CR0560 R


JUDGMENT:                                      Affirmed in part, Reversed in part and
                                               Remanded

DATE OF JUDGMENT ENTRY:                         August 7, 2017

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

GARY BISHOP                                    KATHERINE R. ROSS-KINZIE
Prosecuting Attorney                           Assistant State Public Defender
Richland County, Ohio                          250 East Broad St., Suite 1400
                                               Columbus, Ohio 43215
By: JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 15CA87                                                           2

Hoffman, P.J.



       {¶1}   Defendant-appellant Tracy Isaac reopens her appeal of her conviction and

sentence entered by the Richland County Court of Common Pleas on one count of illegal

manufacture of methamphetamines, in the vicinity of a school zone and/or juvenile; one

count of illegal assembly or possession of chemicals for the manufacture of

methamphetamines, in the vicinity of a school zone and/or a juvenile, and two counts of

child endangering. Plaintiff-appellee is the state of Ohio. 1

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On August 12, 2014, Officer Mandy Lynn Rodriquez of the Mansfield

Metrich Drug Task Force received a call from a pharmacist at the Walgreens in Mansfield,

Ohio. The pharmacist reported suspicious conduct on the part of two women attempting

to purchase a quantity of pseudoephedrine while visiting the Walgreens pharmacy. The

women had trouble producing identification, and one of the women left leaving her

purported identification behind. Each of the women had prior significant history of

purchasing pseudoephedrine.

       {¶3}   Officer Rodriquez and Officer Steven Schivinski of the Mansfield Metrich

Drug Task Force drove to the Walgreens and spoke with the pharmacist, retrieving the

left-behind identification. The officers learned the identification belonged to Joanne Burns,

codefendant herein, who had a suspended driver's license but had been issued a state

identification card.



1
 This matter comes before this Court on reopening pursuant to App. Rule 26(B), following
our Opinion and Judgment Entry entered in State v. Isaac, Richland App. No. 15CA87,
2016-Ohio-7376.
Richland County, Case No. 15CA87                                                            3


       {¶4}   The officers then drove to the address indicated on the identification card

left at the pharmacy, that being 751 Armstrong in Mansfield, Ohio. The premises at the

address appeared to be abandoned. A subsequent inquiry revealed Joanne Burns was

presently living at 739 Bowman Street in Mansfield, Ohio. The officers proceeded to that

address.

       {¶5}   Upon arrival there, a boy about twelve years of age answered the door,

stating no adults were present at the home. The officers returned to the residence an hour

later, noticing a vehicle in the driveway. Upon knocking, two adults answered the door,

who were identified as Joanne Burns and her husband, Lyle Burns. The officers obtained

verbal consent to search the residence from the Burns.

       {¶6}   Present in the home were: Joanne Burns, Lyle Burns, Appellant, and two

minor children. The female child approximately five or six years of age belonged to Burns

and her husband, and a male child, approximately twelve years of age, who had

previously answered the door, belonged to Appellant.

       {¶7}   Appellant indicated to the officers she had been staying at the residence for

about two weeks due to marital problems with her husband. At the time the officers

entered the home, Appellant was in an upstairs bedroom.

       {¶8}   Officers conducted a search of the home, including the upstairs area where

Joanne Burns and Appellant had bedrooms, and the basement. In the basement of the

residence, officers found: two bottles of liquid, rubber tubing, coffee filters, Coleman fuel,

ammonia nitrate, peeled lithium batteries, and cold packs. The officers also conducted a

test which indicated the presence of ammonia, necessary in the manufacture of

methamphetamine. The items were submitted to the Mansfield Police Crime Lab. The
Richland County, Case No. 15CA87                                                          4


liquid found in the one-pot cooking vessel was tested for the presence of

methamphetamine.

       {¶9}   The Richland County Grand Jury indicted Appellant as follows: Count One,

manufacturing or engaging in the production of methamphetamine, in the vicinity of a

school zone and/or juvenile, in violation of R.C. 2925.04(A) and (C)(3)(b), a felony of the

first degree; Count Two: assembling or possessing one or more chemicals used to

manufacture methamphetamine, in the vicinity of a school and/or juvenile, in violation of

R.C. 2925.041(A) and (C)(2), a felony of the second degree; and Counts Three and Four,

endangering children, in violation of R.C. 2919.22(B)(6), both felonies of the third degree.

       {¶10} On August 4, 2015, the State filed a motion for joinder of defendants. On

August 25, 2015, Appellant filed a memorandum in opposition. The trial court granted the

motion for joinder.

       {¶11} The matter proceeded to jury trial. The jury found Appellant guilty of the

charges as stated in the indictment. On September 14, 2015, the trial court sentenced

Appellant to a mandatory ten years imprisonment on Count One; the trial court merged

Appellant's conviction on Count Two with her conviction on Count One. The trial court

sentenced Appellant to two years mandatory time on Counts Three and Four, ordering

the terms to run concurrently, for a total term of ten years. Appellant was also sentenced

to a five year term of mandatory post-release control, and a sixty month driver's license

suspension.

       {¶12} Via Order of September 17, 2015, the trial court imposed costs of the jury

in the amount of $1,400 jointly and severally between Appellant and her codefendant

Joanne Burns.
Richland County, Case No. 15CA87                                                        5

      {¶13} Appellant filed a direct appeal of her conviction and sentence in State v.

Isaac, Richland App. No. 15CA87, 2016-Ohio-7376. Via Opinion and Judgment Entry of

October 14, 2016, this Court affirmed Appellant’s convictions as to Count One of illegal

manufacture of methamphetamine, in violation of R.C. 2925.04(A) and (C)(3)(b), within

the vicinity of a school zone and/or a juvenile; and Count Two of illegal possession of

chemicals for the manufacture of methamphetamine, in violation of R.C. 2925.041(A) and

(C)(2), in the vicinity of a school zone and/or a juvenile.2 This Court further affirmed

Appellant’s convictions on Counts Three and Four, child endangering, holding,



             Appellant was further charged in Counts Three and Four with

      Endangering Children in violation of R.C. of 2919.22(B)(6), which reads,

             (B) No person shall do any of the following to a child under eighteen

      years of age or a mentally or physically handicapped child under twenty-

      one years of age:

             ***

             (6) Allow the child to be on the same parcel of real property and within

      one hundred feet of, or, in the case of more than one housing unit on the

      same parcel of real property, in the same housing unit and within one

      hundred feet of, any act in violation of section 2925.04 or 2925.041 of the

      Revised Code when the person knows that the act is occurring, whether or




2
  This Court also affirmed the denial of Appellant’s motion in limine to exclude expert
testimony, the denial of a motion in limine to exclude evidence as to Appellant’s past
purchases of pseudoephedrine, and the trial court’s imposition of costs and a mandatory
fine.
Richland County, Case No. 15CA87                                                       6


      not any person is prosecuted for or convicted of the violation of section

      2925.04 or 2925.041 of the Revised Code that is the basis of the violation

      of this division.

             ***

             Further, there was sufficient testimony presented at trial both

      children resided at 739 Bowman Street on August 12, 2014, during which

      time there was evidence of a one-pot cook methamphetamine lab

      discovered by law enforcement. The statute does not require the state to

      prove Appellant had the authority or the ability to control the minor child of

      her codefendant.

             We find Appellant's convictions were not against the manifest weight

      or against the sufficiency of the evidence.




      {¶14} Via Entry of March 29, 2017, this Court granted Appellant’s Rule 26(B)

application to reopen appeal. Appellant assigns as error on reopening,



             I. THE TRIAL COURT ERRED WHEN IT DENIED MS. ISAAC’S

      CRIM.R. 29(A) MOTION FOR ACQUITTAL ON COUNTS 3 AND 4,

      ENDANGERING CHILDREN, BECAUSE THE CONVICTION IS NOT

      SUPPORTED BY SUFFICIENT EVIDENCE. THE STATE PRESENTED

      INSUFFICIENT EVIDENCE TO SUPPORT ALL OF THE ESSENTIAL

      ELEMENTS OF THE CHARGE OF ENDANGERING CHILDREN BEYOND
Richland County, Case No. 15CA87                                                 7


      A REASONABLE DOUBT, AND MS. ISAAC’S CONVICTION FOR

      ENDANGERING CHILDREN THEREFORE VIOLATES HER RIGHTS TO

      DUE PROCESS. FIFTH AND FOURTEENTH AMENDMENTS TO THE

      U.S. CONSTITUTION; ARTICLE I, SECTION 16 OF THE OHIO

      CONSTITUTION.

             II. THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE

      JUVENILE    SPECIFICATIONS        FOR     COUNT       ONE,     ILLEGAL

      MANUFACTURE        OF   METHAMPHETAMINE,        AND    COUNT       TWO,

      ILLEGAL POSSESSION OF CHEMICALS FOR THE MANUFACTURE OF

      METHAMPHETAMINE. FIFTH AND FOURTEENTH AMENDMENTS TO

      THE U.S. CONSTITUTION; ARTICLE I, SECTION 16 OF THE OHIO

      CONSTITUTION.

             III. TRACY ISAAC WAS DEPRIVED OF HER RIGHT TO THE

      EFFECTIVE    ASSISTANCE      OF   TRIAL   COUNSEL      WHEN        TRIAL

      COUNSEL FAILED [TO] ARGUE THERE WAS INSUFFICIENT EVIDENCE

      TO SUPPORT THE JUVENILE SPECIFICATIONS FOR COUNT ONE,

      ILLEGAL MANUFACTURE OF METHAMPHETAMINE, AND COUNT

      TWO,     ILLEGAL    POSSESSION     OF     CHEMICALS          FOR    THE

      MANUFACTURE OF METHAMPHETAMINE IN HER RULE 29 MOTION

      FOR ACQUITTAL. SIXTH AND FOURTEENTH AMENDMENTS, UNITED

      STATES     CONSTITUTION;     SECTION      10,   ARTICLE       1,   OHIO

      CONSTITUTION.
Richland County, Case No. 15CA87                                                           8


              IV. BY FAILING TO ARGUE THAT THE STATE DID NOT PRESENT

       SUFFICIENT EVIDENCE TO SUPPORT ALL THE ELEMENT OF

       ENDANGERING CHILDREN, AND FAILING TO ARGUE THAT THE

       STATE DID NOT PRESENT SUFFICIENT EVIDENCE TO SUPPORT

       JUVENILE SPECIFICATIONS ATTACHED TO HER MANUFACTURING

       CONVICTIONS, AND FAILING TO ARGUE THAT TRIAL COUNSEL WAS

       INEFFECTIVE, ORIGINAL APPELLATE COUNSEL PROVIDED MS.

       ISAAC WITH INEFFECTIVE ASSISTANCE, IN VIOLATION OF THE

       FOURTEENTH          AMENDMENT           TO     THE      UNITED       STATES

       CONSTITUTION. APP. R. 26(B)(7).



                                                 I.

       {¶15} In the first assigned error, Appellant maintains the trial court erred in

denying her Criminal Rule 29 motion for acquittal as to Counts Three and Four,

endangering children.

       {¶16} Criminal Rule 29(A) provides a court must order the entry of a judgment of

acquittal on a charged offense if the evidence is insufficient to sustain a conviction on the

offense. Crim.R. 29(A). However, “a court shall not order an entry of judgment of acquittal

if the evidence is such that reasonable minds can reach different conclusions as to

whether each material element of a crime has been proved beyond a reasonable doubt.”

State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus. Thus, a motion

for acquittal tests the sufficiency of the evidence. State v. Tatum, 3d Dist. Seneca No.
Richland County, Case No. 15CA87                                                          9

13–10–18, 2011-Ohio-3005, 2011 WL 2448972, ¶ 43, citing State v. Miley, 114 Ohio

App.3d 738, 742, 684 N.E.2d 102 (4th Dist.1996).

       {¶17} When an appellate court reviews a record for sufficiency, 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. State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827

N.E.2d 285, ¶ 47. Sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1997). Accordingly, the question of whether the offered

evidence is sufficient to sustain a verdict is a question of law. State v. Perkins, 3d Dist.

Hancock No. 5–13–01, 2014-Ohio-752, 2014 WL 855870, ¶ 30, citing Thompkins at 386.

       {¶18} Appellant was charged in Counts Three and Four with endangering

children, in violation of R.C. 2919.22(B)(6), which reads,



              (B) No person shall do any of the following to a child under eighteen

       years of age or a mentally or physically handicapped child under twenty-

       one years of age:

              ***

              (6) Allow the child to be on the same parcel of real property and within

       one hundred feet of, or, in the case of more than one housing unit on the

       same parcel of real property, in the same housing unit and within one

       hundred feet of, any act in violation of section 2925.04 or 2925.041 of the

       Revised Code when the person knows that the act is occurring, whether or

       not any person is prosecuted for or convicted of the violation of section
Richland County, Case No. 15CA87                                                          10


      2925.04 or 2925.041 of the Revised Code that is the basis of the violation

      of this division.



      [Emphasis added.]



      {¶19} It is clear the statute requires the State to establish Appellant did, “Allow the

child to be on the same parcel of real property and within one hundred feet of ...” the

methamphetamine lab. While, the State demonstrated the minor children were allowed

on the same parcel of property, it did not establish the children were within one hundred

feet of the methamphetamine lab.

      {¶20} In this case, the State had the burden of proving the children were allowed

on the parcel of property and within one hundred feet of the methamphetamine lab. No

one testified the children were ever in the basement or the specific distance between

where the children had access to in the house and the meth lab in the basement.

Therefore, the State has not met the burden of proof.

      {¶21} We find there was insufficient evidence to find the elements of child

endangering proven beyond a reasonable doubt, and the trial court erred in denying

Appellant's Criminal Rule 29 motion for acquittal as to Counts Three and Four.

      {¶22} Accordingly, Appellant’s convictions on Counts Three and Four are

reversed, and the matter remanded to the trial court for further proceedings in accordance

with the law and this Opinion.

                                                II.
Richland County, Case No. 15CA87                                                             11


       {¶23} In the second assignment of error, Appellant maintains her convictions on

the two attendant juvenile specifications alleging “within the vicinity of a juvenile,” attached

to Counts One and Two, were not supported by the sufficiency of the evidence. We

disagree.

       {¶24} The standard of review for a challenge to the sufficiency of the evidence is

set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two

of the syllabus, in which the Ohio Supreme Court held, “An appellate court's function

when reviewing the sufficiency of the evidence to support a criminal conviction is to

examine the evidence admitted at trial to determine whether such evidence, if believed,

would convince the average mind of the defendant's guilt beyond a reasonable doubt.

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.”

       {¶25} Appellant was convicted on Count One, manufacturing or engaging in the

production of methamphetamine, in the vicinity of a school zone and/or juvenile, in

violation of R.C. 2925.04(A) and (C)(3)(b), a felony of the first degree; and on Count Two,

assembling     or   possessing     one    or   more    chemicals     used    to   manufacture

methamphetamine, in the vicinity of a school and/or juvenile, in violation of R.C.

2925.041(A) and (C)(2), a felony of the second degree.

       {¶26} R.C. 2925.01(BB) defines “in the vicinity of a juvenile” as,



              (BB) An offense is “committed in the vicinity of a juvenile” if the

       offender commits the offense within one hundred feet of a juvenile or within
Richland County, Case No. 15CA87                                                           12


      the view of a juvenile, regardless of whether the offender knows the age of

      the juvenile, whether the offender knows the offense is being committed

      within one hundred feet of or within view of the juvenile, or whether the

      juvenile actually views the commission of the offense.



      {¶27} Unlike R.C. 2919.22(B)(6) defining the offense of endangering children, the

juvenile enhancement specification does not always require proof the offense was

committed within 100 feet of the juvenile.

      {¶28} The Supreme Court in State v. Lozier, 101 Ohio St.3d 161, 803 N.E.2d 770,

2004-Ohio-732, held,



             R.C. 2925.01(BB) makes it abundantly clear that the offender's

      mental state is irrelevant in determining whether the offender has committed

      an offense “in the vicinity of a juvenile.” An offender is liable whether or not

      he knows the age of the juvenile, or whether he realizes that a juvenile is in

      the vicinity.

             ***

             The General Assembly, in imposing the strict liability requirement for

      drug sales “in the vicinity of a juvenile,” perfectly illustrates what R.C.

      2901.21(B) calls a “purpose to impose strict liability.” Additionally, the stark

      contrast between the definition of “committed in the vicinity of a school” and

      the definition of “committed within the vicinity of a juvenile” indicates that the
Richland County, Case No. 15CA87                                                              13


      General Assembly did not intend to impose strict liability for selling LSD in

      the “vicinity of a school” section.

             ***

             The distance requirement for an act to be committed within “the

      vicinity of a juvenile” is only 100 feet or “within view of the juvenile.” Drug

      trafficking is a dangerous activity. Beyond the psychic danger of seeing

      drugs being sold, there is a very real physical danger surrounding a drug

      transaction, even for nonparticipants. Thus, a child, whether in view or not,

      could become a part of the collateral damage of a failed transaction. The

      threat to a child is real and imminent.

             On the other hand, to be “in the vicinity of a school,” an offender

      could, by definition, be 1,000 feet away from a school. A child may not

      necessarily be nearby, or even in the school. The transaction could occur

      in the late evening hours, or in summer, or during any other period of the

      year that the school is closed.

             The difference between the potential peril of a transaction that occurs

      “in the vicinity of a school” and “in the vicinity of a juvenile” is significant. “In

      the vicinity of a school” addresses danger that can be theoretical; “in the

      vicinity of a juvenile” addresses a real, present danger. Because the “vicinity

      of a juvenile” offense is so much more dangerous, the General Assembly

      has determined that the offender's knowledge that a juvenile is nearby is

      irrelevant. Also, since “in the vicinity of a juvenile” includes being in view of

      a juvenile, its parameters can expand well beyond 100 feet. Thus, if an
Richland County, Case No. 15CA87                                                           14


       offense occurs within 1,000 feet of a school, the offender still can be subject

       to strict criminal liability if there is a juvenile within view. As the danger to

       children becomes more real, the culpable mental state gets stricter.

       (Emphasis added).



       {¶29} In State v. Riel, 4th Dist. No. 08CA3, 2008-Ohio-5354, Riel was convicted of

trafficking in marijuana in the vicinity of a juvenile. The Fourth District held the presence

of at least two children in a church parking lot, across the street, sufficient evidence the

offense was committed “within the view” of a juvenile. The Court held,



              Moreover, assuming arguendo that we have misunderstood Officer

       Tilton's testimony, we nevertheless find sufficient evidence that the offense

       was committed “within the view” of a juvenile. The statute does not require

       that juveniles need to have actually observed the transaction. Id. Rather,

       the transaction need only have occurred “within” their view. Although

       nothing in the statute or case law explicitly sets out what the Ohio General

       Assembly meant by the phrase “within” their view, it is logical to assume

       that their intention is to proscribe transactions in locations where juveniles

       could view the activity.



       {¶30} In State v. Turner, 4th Dist. No. 08CA3234, 2009-Ohio-3114, the Fourth

District addressed the sufficiency of the evidence on appeal from a juvenile specification

conviction. Turner transported drugs from Columbus to Portsmouth, delivering them to
Richland County, Case No. 15CA87                                                        15


the home of Cindy Mershon, and eventually distributing the drugs to local dealers in the

Portsmouth area. Turner stayed at the Mershon residence and dealt crack cocaine and

heroin on at least three separate occasions. When officers searched the residence,

Turner was found in constructive possession of crack cocaine and heroin. The officers

observed Mershon’s nine year-old daughter leaving the residence immediately preceding

the execution of the search. Testimony established Mershon’s daughter and seventeen

year-old son lived at the residence.

       {¶31} The Fourth District held the observation of a nine year-old girl leaving the

residence prior to the execution of the search warrant, which found drugs in the house,

and the juveniles’ residency in the home sufficient evidence to support Turner’s conviction

for the juvenile specification.

       {¶32} In State v. Cunningham, 6th Dist. No. WD-08-063, 2009-Ohio-6970, the

Sixth District held,



              The state's evidence in this case as to the presence of juveniles

       consisted of background noise on the audiotapes that sounded like

       children's voices. There also was evidence that the drug transactions

       occurred at a residence in a mobile home park. Because children's voices

       were heard and the transactions occurred in a residence, the jury could

       reasonably have inferred that they took place “within the vicinity of a

       juvenile” as defined in R.C. 2925.01(BB). Establishing the juvenile

       enhancement elevates the degree of the offenses of which appellant was

       found guilty.
Richland County, Case No. 15CA87                                                          16




       {¶33} It is undisputed the children herein resided in the home. The children were

present at the time the officers arrived at the residence, and told police the adults were

not present. The children were present during the time the officers searched the

residence. The investigating officers testified at trial the basement door was unlocked at

the time of the search. The basement was accessible from the outside of the home and

from an entryway near the kitchen. State’s Exhibit 49 introduced at trial depicts the

basement door located in the kitchen of the residence. The picture indicates the stairs

leading to the basement, with the meth lab in view.

       {¶34} Based upon the evidence presented, we find the juvenile specifications

were supported by sufficient evidence and the jury reasonably found the specifications

proven beyond a reasonable doubt despite the lack of definite evidence the juveniles

were within 100 feet of the meth lab.

       {¶35} The second assignment of error is overruled.

                                                III.

       {¶36} In the third assignment of error, Appellant maintains she was deprived of

the effective assistance of trial counsel due to counsel’s failure to argue the insufficiency

of evidence with regard to the juvenile specifications attendant to Counts One and Two.

       {¶37} Having sustained Appellant’s first assignment of error, we find any

discussion of this assigned error moot.

                                                IV.

       {¶38} Having overruled Appellant’s second assignment of error, we find any

further discussion of the assignment of error moot.
Richland County, Case No. 15CA87                                                   17


      {¶39} The Judgment of the Richland County Court of Common Pleas is affirmed

as it relates to the juvenile specification on Counts One and Two, reversed as to

Appellant’s convictions on Counts Three and Four, and remanded for further proceedings

in accordance with the law and this Opinion.

By: Hoffman, P.J.

Wise, John, J. and

Wise, Earle, J. concur
