[Cite as State v. Gifford, 2015-Ohio-5298.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :   Appellate Case No. 26660
          Plaintiff-Appellee                        :
                                                    :   Trial Court Case No. 13-CR-3682
 v.                                                 :
                                                    :   (Criminal Appeal from
 MICHAEL GIFFORD                                    :    Common Pleas Court)
                                                    :
          Defendant-Appellant                       :
                                                    :

                                               ...........
                                              OPINION
                          Rendered on the 18th day of December, 2015.
                                               ...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. No. 0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

J. DAVID TURNER, Atty. Reg. No. 0017456, Post Office Box 291771, Kettering, Ohio
45429-1771
      Attorney for Defendant-Appellant

                                              .............

FAIN, J.

        {¶ 1} Defendant-appellant Michael C. Gifford appeals from his conviction and

sentence, following a no-contest plea, on one count of Illegal Manufacture of Drugs, in
                                                                                          -2-


violation of R.C. 2925.04(A), a felony of the second degree, one count of Illegal

Assembly/Possession of Chemicals for the Manufacture of Drugs, in violation of R.C.

2925.041(A), a felony of the third degree, and one count of Aggravated Possession of

Drugs, in violation of R.C. 2925.11(A), a felony of the fifth degree. Gifford’s assigned

appellate counsel has filed a brief under the authority of Anders v. California, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he has not found any potential

assignments of error having arguable merit.        Neither have we.      Accordingly, the

judgment of the trial court is Affirmed.



      I. Gifford’s Purchase of Sudafed at a Walgreens Drugstore Leads to his

               Arrest for the Illegal Manufacture of Methamphetamine

       {¶ 2} At about 5:00, one morning in mid-November, 2013, Kettering Police Officer

Mark Stefano was dispatched to a Walgreens drugstore. The pharmacist there told

Stefano that a man, later identified as Gifford, had purchased a package of Wal-Phed,

Walgreens’ brand-name equivalent of Sudafed, and an ice-pack. The pharmacist told

Stefano that these were items used to make methamphetamine. She asked Stefano to

“trespass” the man, if Stefano could find him; i.e., to tell him that he was no longer

welcome at Walgreens,1 and would be subject to prosecution for trespass if he entered

the store.

       {¶ 3} The pharmacist gave Stefano the license plate number of the car in which

Gifford was a passenger. Stefano went to the address of the owner of the car, a woman,



1It is not clear from the record if the man – Gifford – was to be “trespassed” from all
Walgreens stores, or merely from the store where he bought the Sudafed.
                                                                                          -3-


made contact with her, and established that the car had been made available to her

mother-in-law to drive. Later in that conversation, Stefano discovered that the passenger

in the car was likely Gifford, the mother-in-law’s son, and that Gifford and his mother lived

at 2904 Culver Avenue, in Dayton.

       {¶ 4} Stefano asked for Dayton police to respond with him to the Culver Avenue

address, and then proceeded to that address. Stefano testified that his purpose was:

“Just to locate Mr. Gifford and also just to trespass him. That was my entire purpose of

being at that address.”

       {¶ 5} Stefano got there about ten minutes before the Dayton police, parked

“several houses down from the address,” and waited in his cruiser for their arrival.

Stefano could tell that the garage door was open at 2904 Culver, but could not see

anything inside. When the Dayton police officers arrived, Stefano talked with them, and

explained his purpose for making contact with Gifford.

       {¶ 6} Stefano testified as to what happened next:

              A. We just proceeded up the sidewalk, northbound up the sidewalk

       towards the residence, started up the driveway. At that point I observed

       the truck and matched the truck with the license plate number and knew

       that that was the vehicle that had been at Walgreens.

              Q. Did it match the description that was provided to you by the

       Walgreens employee as well?

              A. Correct.

              Q. Okay.

              A. Proceeded up the driveway. The driveway was longer in length.
                                                                                -4-


The truck was parked closer to the garage. I could tell the garage was

open, the door was open, but the truck obscured any view into the garage

at that point. As we started up the driveway, Mr. Gifford started down the

driveway towards on [sic] the driver’s side of the truck, started walking.

He’s like, “What can I help you with?” And, you know, I think we just said,

“How you doing?” He saw it was us. He then made a direct – he turned

and started towards the back. It was like an enclosed patio entrance to the

rear of the house.

      I said, “Hey, hold on a second. We just want to talk to you.” “Oh,

just a minute.” He said, “Just a minute. I just want to close this.” He said,

“I’m not going anywhere. I just want to close this.” He opened the screen

door and the garage door started to go down. And then he came over and

made contact with us.

      Q. And did you go and get him or did he come voluntarily back to

speak with you?

      A. He came back out toward us. And we stood – we were right

there. It was like the enclosed patio on the left. The garage was on our

right. And the truck was to our back side. And we stood there and talked.

      Q. And at that point when you said, “Hey,” when you caught his

attention, was that for the purpose of providing him with the trespass?

      A. Yes. I just wanted to talk to him about the trespass.

      ***

      Q. Okay. And tell me about that conversation.
                                                                                       -5-




             A. I told him why I was there, that he had been to Walgreens. At

      first he was confused. He had made mention of being at Wal-Mart and

      purchased some fuel. I said, “No, I’m talking about Walgreens just a little

      bit ago. You had been there and purchased some Wal-Phed and also the

      ice packs.” And he said, “Oh, yeah, yeah. I was there.” We continued

      on.    I said, “Well,” I said, “Those are common items to make

      methamphetamines.” And I said, “We do track the sales at Walgreens and

      at this point the pharmacist just wants you trespassed from the property.”

      And he said he was aware that those items are commonly used to make

      methamphetamines.

             And then he actually said, “I’m actually making it. I’m going to be

      honest with you guys. I’m actually making it right now in the garage.” At

      that point I think Dayton officer, one of the two asked him to open the

      garage. He said, “do you have a search warrant?” And we were all like,

      “Well, you just told us what’s in there.”       And then he voluntarily freely

      opened it and we went from there.

             Q. Okay. So when he opened the garage did you go inside of it?

             A. I think eventually all three of us did walk in. I walked in. I

      observed a small pot on the tool bench and inside that pot was like a one

      liter or two liter bottle that was actively boiling, brewing.

      {¶ 7} Gifford also testified at the suppression hearing. His testimony conflicted

with that of the officers in a number of significant respects. The trial court found the
                                                                                        -6-


testimony of the two police officers at the suppression hearing to be credible.

      {¶ 8} As a result of the discoveries in the garage, Gifford was arrested.



                                II. The Course of Proceedings

      {¶ 9} Gifford was charged by indictment with one count of Illegal Manufacture of

Drugs, in violation of R.C. 2925.04(A), a felony of the second degree, one count of Illegal

Assembly/Possession of Chemicals for the Manufacture of Drugs, in violation of R.C.

2925.041(A), a felony of the third degree, and one count of Aggravated Possession of

Drugs, in violation of R.C. 2925.11(A), a felony of the fifth degree. Gifford moved to

suppress the evidence found in the garage, contending that it was obtained as the result

of an unlawful search and seizure. Following a hearing, Gifford’s motion to suppress

was overruled.

      {¶ 10} Thereafter, Gifford pled no contest to all three charges, and convictions

were entered. The parties agreed to a three-year mandatory prison sentence, which the

trial court imposed for the Illegal Manufacture of Drugs offense. The trial court imposed

one-year sentences for the other two offenses, to be served concurrently with the three-

year sentence for Illegal Manufacture. Upon Griffin’s motion, the trial court waived the

mandatory fines for the offenses, finding Gifford to be indigent. The trial court imposed

a six-month suspension of Gifford’s driver’s license, informed Gifford that he would be

subject to post-release control for three years after his release from prison, and informed

him of the consequences if he were to violate the conditions of post-release control.

      {¶ 11} From his conviction and sentence, Gifford appeals.            His appointed

appellate counsel has filed an Anders brief, reflecting that he could find no potential
                                                                                       -7-


assignments of error having arguable merit. By entry dated September 2, 2015, we

accorded Gifford the opportunity to file his own, pro se brief within 60 days. He has not

done so.

       III. We Find No Potential Assignments of Error Having Arguable Merit

       {¶ 12} In his brief, appellate counsel discusses one error that the trial court may

have committed in its analysis of Gifford’s motion to suppress. Counsel notes that the

trial court found that Gifford had voluntarily consented to the search of his garage after

stating that the State had the burden of proving voluntary consent “by a preponderance

of the evidence.” Counsel cites State v. Black, 2d Dist. Montgomery No. 23524, 2010-

Ohio-2916, and State v. Posey, 40 Ohio St.3d 420, 427, 534 N.E.2d 61 (1988), for the

proposition that the State must show by clear and positive evidence that consent was

freely given, being a standard of proof not significantly different from a clear and

convincing standard of proof.

       {¶ 13} However, appellate counsel goes on to conclude that any error in this regard

is harmless in view of the trial court’s alternative basis for its conclusion:

              However, assuming arguendo that the [trial] court’s ruling was

       erroneous as it pertained to the standard of evidence to be applied to

       determine voluntary consent, the court made an alternate ruling in support

       of its decision overruling defendant’s motion to suppress. The [trial] court

       determined that “the police had grounds to search the garage based on

       Gifford’s purchase of the meth lab ingredients and his [volunteered]

       statement that he was ‘making it now.’ ” The [trial] court ruled that “[t]he

       risk of explosion as testified by the police officers constitutes exigent
                                                                                            -8-


       circumstances as an exception to the search warrant requirement,” citing

       State v. * * * Timofeev, [9th Dist. Summit No. 24222,] 2009-Ohio-3007 * * *

       and R.C. 2933.33 in support of this ruling.

       {¶ 14} Counsel went on to agree with this part of the trial court’s analysis. So do

we. R.C. 2933.33(A) provides as follows:

               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} To the trial court’s analysis we would only add that at least one of the officers

testified to the risk to the public posed by toxic gasses resulting from the illegal

manufacture of methamphetamines. Not only was the warrantless search of the garage

reasonable, it would have been irresponsible of the officers not to search the garage after

Gifford’s volunteered statement that he was making methamphetamine in the garage

“right now.”

       {¶ 16} Pursuant to our duty under Anders v. California, supra, we have conducted

an independent review of the record. We have found no potential assignments of error

having arguable merit. The trial court conducted a proper plea colloquy. It imposed

concurrent sentences within the ranges authorized by law, and the prison sentence it
                                                                                    -9-


imposed was the sentence that Gifford and the State agreed to.



                                        III.   Conclusion

       {¶ 17} No potential assignments of error with arguable merit having been found,

the judgment of the trial court is Affirmed.

                                      .............



HALL and WELBAUM, JJ., concur.


Copies mailed to:

Mathias H. Heck
Carley J. Ingram
J. David Turner
Michael Gifford
Hon. Richard Skelton
