[Cite as State v. Umstead, 2017-Ohio-8756.]


                                       COURT OF APPEALS
                                     HOLMES COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                       Hon. William B. Hoffman, J.
                                                 Hon. John W. Wise, J.
-vs-
                                                 Case No. 16 CA 004
MATTHEW B. UMSTEAD

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case Nos. 15CR106 and 16CR006


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       November 30, 2017



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

F. CHRISTOPHER OEHL                           CHRISTINA I. REIHELD
ASSISTANT PROSECUTOR                          Post Office Box 532
164 East Jackson Street                       Danville, Ohio 43014
Millersburg, Ohio 44654
Holmes County, Case No. 16 CA 004                                                       2

Wise, J.

       {¶1}   Subsequent to a reopening by this Court pursuant to App.R. 26(B),

Defendant–Appellant Matthew B. Umstead further appeals from his conviction in the

Court of Common Pleas, Holmes County, on several felony counts connected to the

illegal manufacture of methamphetamine. Appellee is the State of Ohio. A brief summary

of the relevant facts and procedural history leading to this appeal is as follows.

       {¶2}   On November 23, 2015, Sgt. Timothy Stryker, a narcotics detective with the

Holmes County Sheriff's Office, received information concerning a purchase of

pseudoephedrine at a pharmacy in Shreve, Ohio. The purchaser was Donnie Spurlock,

who was known by the detective to periodically stay at appellant's home in Holmesville,

Ohio. After Sgt. Stryker conducted visual surveillance of appellant's residence, he

received a second alert that Spurlock had also purchased pseudoephedrine at another

store, this time at a pharmacy in Wooster, Ohio. At about 7:25 PM, Stryker and a fellow

officer observed a fire in the back yard of appellant's residence. Stryker went toward the

back of the residence and approached co-defendant Jason White, who was putting more

items into the fire. A trash bag next to White was later found to contain used

pseudoephedrine packs. Stryker also observed an odor of chemical coming from the fire

and was able to see a pseudoephedrine box that had not caught fire yet.

       {¶3}   Stryker decided to secure the property to get a search warrant. While he

was walking on the property, he observed an odor he associated with the manufacturing

of methamphetamine in the narrow area between the “man cave” (a shed behind the

house) and the back of the detached garage. Shortly thereafter, back-up officers entered

the garage.
Holmes County, Case No. 16 CA 004                                                         3


       {¶4}   Spurlock in the meantime came out of the “man cave” and was cuffed by

one of the deputies. Deputies then entered the man cave and discovered an active meth

lab. The lab was dismantled. A search warrant was obtained for the property at about

10:25 PM. During execution of the warrant in the home, they found “baggies of a crystal-

like white powdered” substance in a safe in appellant's bedroom. Tr. at 125.

       {¶5}   The powder was later analyzed by BCI and determined to be

methamphetamine. Also, a gun was subsequently found in appellant’s bedroom.

       {¶6}   The deputies took appellant into custody that evening, after White had gone

into the house to get him. Stryker interviewed appellant on video at the Holmes County

Jail at approximately 1:00 AM on November 24, 2015.

       {¶7}   Appellant was thereafter charged by joint indictments with at least eight

felony counts stemming from the aforesaid investigatory activity. Following a pre-trial

renumbering entry by the trial court, the counts were set forth as follows:

       {¶8}   Count 1—Illegal Manufacture of Drugs (R.C. 2925.04(A)); Count 2—Illegal

Assembly or Possession of Chemicals for the Manufacture of Drugs (R.C. 2925.041(A));

Count 3—Aggravated Possession of Drugs (R.C. 2925.11(A)); Count 4—Tampering with

Evidence (R.C. 2921.12(A)(1)); Count 5—Endangering Children (R.C. 2919.22(B)(6));

Count 6—Endangering Children (R.C. 2919.22(B)(6)); Count 7—Having Weapons while

Under Disability (R.C. 2923.13(A)(2)); and Count 8—Aggravated Possession of Drugs

(R.C. 2925.11(A)).

       {¶9}   The matter proceeded to a jury trial on April 7 and 8, 2016. Appellant was

ultimately found guilty of all eight counts; however, he was found not guilty of the firearm
Holmes County, Case No. 16 CA 004                                                       4


specifications as alleged on four of the counts. Via a judgment entry issued on April 11,

2016, appellant was sentenced inter alia to a prison term of sixteen years and six months.

       {¶10} On May 9, 2016, appellant filed a notice of appeal. In his brief, he raised

assignments of error as to the sufficiency and manifest weight of the evidence, the trial

court’s denial of his motion to acquit under Crim.R. 29(A), and the effectiveness of his

trial counsel.

       {¶11} We affirmed appellant’s convictions via an opinion issued on February 24,

2017. See State v. Umstead, 5th Dist. Holmes No. 16 CA 004, 2017-Ohio-698, appeal

not allowed, 149 Ohio St.3d 1465, 2017-Ohio-5699, 77 N.E.3d 989 (2017).

       {¶12} On April 12, 2017, appellant filed a pro se application to reopen his appeal,

pursuant to App.R. 26(B). The State of Ohio did not file a response.

       {¶13} On July 24, 2017, this Court reopened the appeal, limiting appellant to two

of his proposed assignments of error. These were (1) the claim that the evidence was

insufficient to sustain appellant’s conviction for having weapons under disability and (2)

the claim that trial counsel had been ineffective in failing to challenge the testimony of

State’s expert Stephanie Laux in light of Crim.R 16(K).

       {¶14} However, appellant’s present counsel, upon her assignment to the case,

reviewed the matter and thereafter filed a brief pursuant to Anders v. California, infra,

asserting that she could find no error prejudicial to appellant for argument upon

reopening. Appellate counsel included therein a conditional motion to withdraw.

       {¶15} Counsel for appellant has thus submitted two potential assigned errors

under Anders concerning appellant’s aforementioned convictions:
Holmes County, Case No. 16 CA 004                                                         5


      {¶16} “I.    APPELLANT WAS PROVIDED INEFFECTIVE ASSISTANCE OF

APPELLATE COUNSEL DUE TO COUNSEL’S FAILURE TO CHALLENGE THE

EVIDENCE AS TO WHETHER APPELLANT HAS A PRIOR CONVICTION TO

SUPPORT HIS WEAPONS UNDER DISABILITY CONVICTION.

      {¶17} “II.   APPELLANT WAS PROVIDED INEFFECTIVE ASSISTANCE OF

APPELLATE COUNSEL DUE TO COUNSEL’S FAILURE TO CHALLENGE TO [SIC]

EXPERT TESTIMONY OF STEPHANIE LAUX FOR FAILURE TO COMPLY WITH

CRIM.R. 16(K).”

      {¶18} Appellant was given an opportunity to file a pro se brief raising additional

potential assignments of error, and he has therein similarly asserted as follows:

      {¶19} “III. APPELLANT WAS PROVIDED INEFFECTIVE ASSISTANCE OF

APPELLATE COUNSEL DUE TO COUNSEL’S FAILURE TO CHALLENGE THE

EVIDENCE AS TO WHETHER APPELLANT HAS A PRIOR CONVICTION TO

SUPPORT HIS WEAPONS UNDER DISABILITY CONVICTION.

      {¶20} “IV. APPELLANT WAS PROVIDED INEFFECTIVE ASSISTANCE OF

APPELLATE COUNSEL DUE TO COUNSEL’S FAILURE TO CHALLENGE THE

EXPERT TESTIMONY OF STEPHANIE LAUX FOR FAILURE TO COMPLY WITH

CRIM.R. 16(K).”

      {¶21} App.R. 26(B)(7) states in part that if an application to reopen is granted, “the

case shall proceed as on an initial appeal in accordance with these rules except that the

court may limit its review to those assignments of error and arguments not previously

considered. ***.” As noted in our recitation of facts, present appellate counsel has

presented us with an Anders brief following our reopening of the appeal. In Anders v.
Holmes County, Case No. 16 CA 004                                                        6

California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, the United States

Supreme Court established the following five criteria: (1) A showing that appellant's

counsel thoroughly reviewed the transcript and record in the case before determining the

appeal to be frivolous; (2) a showing that a motion to withdraw has been filed by

appellant's counsel; (3) the existence of a brief filed by appellant's counsel raising any

potential assignments of error; (4) a showing that appellant's counsel provided to the

appellant a copy of said brief; and (5) a showing that appellant's counsel provided

appellant adequate opportunity to file a pro se brief raising any additional assignments of

error appellant believes the appellate court should address. See State v. Jennings, 5th

Dist. Richland No. 98CA24, 1999 WL 547919.

       {¶22} Pursuant to Anders, if, after a conscientious examination of the record, a

defendant's counsel concludes the case is wholly frivolous, then he or she should so

advise the court and request permission to withdraw. Id. at 744. Once the defendant's

counsel satisfies the aforesaid requirements, the appellate court must fully examine the

proceedings below to determine if any arguably meritorious issues exist. If the appellate

court also determines that the appeal is wholly frivolous, it may grant counsel's request

to withdraw and dismiss the appeal without violating constitutional requirements, or may

proceed to a decision on the merits if state law so requires. Id.

       {¶23} We note appellant’s counsel and appellant have both presented their

potential assigned errors on the basis of claims of ineffective assistance of original

appellate counsel. See App.R. 26(B)(7). We will herein interpret same as potential claims

that (1) the trial counsel was ineffective in allowing the allegedly insufficient evidence

utilized to show appellant has a prior conviction for purposes of the “weapons under
Holmes County, Case No. 16 CA 004                                                            7


disability” count and that (2) trial counsel was ineffective in allowing the State’s expert

witness Stephanie Laux to testify, in light of Crim.R. 16(K).

       {¶24} Although this case has unconventionally resulted in an App.R. 26(B)

reopening followed by Anders proceedings, we initially find appellate counsel in this

matter has adequately followed the procedures required by Anders v. California, supra.

                                            I., III.

       {¶25} We first turn to the merits of appellant's counsel’s and appellant's aforesaid

potential Assignments of Error ultimately going to the sufficiency of the evidence

demonstrating appellant had committed a felony offense of violence for purposes of the

charge of having a weapon under disability (R.C. 2923.13(A)(2)).

       {¶26} In reviewing a claim of insufficient evidence, “[t]he 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. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus.

       {¶27} R.C. 2945.75(B)(1) states as follows: “Whenever in any case it is necessary

to prove a prior conviction, a certified copy of the entry of judgment in such prior conviction

together with evidence sufficient to identify the defendant named in the entry as the

offender in the case at bar, is sufficient to prove such prior conviction.”

       {¶28} In other words, in order to prove the existence of a prior conviction for

purposes of R.C. 2945.75(B), the State “must present both a certified copy of the prior

judgment and evidence that the defendant named in the prior judgment is the defendant
Holmes County, Case No. 16 CA 004                                                            8

in the case at bar.” State v. Lumpkin, 10th Dist. Franklin No. 05AP–656, 2006-Ohio-1657,

¶ 11.

        {¶29} During the testimony of Sgt. Stryker at appellant’s trial, the State presented

him on the stand with a State’s exhibit he identified as a “certified copy through the Wayne

County Common Pleas Court of a felony domestic violence charge for Matthew B.

Umstead.” Tr. at 140. Stryker also read the case number, 99CR0255, confirmed it was

“signed and under seal,” and responded in the affirmative that it reflected appellant had

been “convicted of a felony Domestic Violence in that case.” Id. Defense counsel did not

cross-examine Stryker on this issue. The certified documents were later entered as

Exhibit 29 without objection. Tr. at 241-242.

        {¶30} Appellant, in his pro se brief, posits that the State relied upon identical

names alone as a means of proving the prior conviction, in violation of the rule of Lumpkin.

However, “[a]s trial courts often note, proof beyond a reasonable doubt does not mean

proof beyond any doubt.” State v. Burgess, 11th Dist. No. 2002-L-019, 2004-Ohio-3338,

¶ 37. We are guided on this issue by our decision in State v. Marshall, 5th Dist.

Tuscarawas No. 2012 AP 11 0065, 2013-Ohio-2978. Similar to what occurred in the case

sub judice, in Marshall the State utilized a police officer to testify at trial as to certified

judgment entries demonstrating prior DUI convictions against the defendant, who likewise

did not object to the testimony. We rejected the defendant’s claim that there was

insufficient evidence proving the prior convictions were actually against him, not someone

else. In so ruling, we additionally referenced the language of R.C. 2945.75(B)(3) and

recognized that the defendant “had the burden of proving the defect in the evidence by a

preponderance of the evidence.” Id. at ¶ 77.
Holmes County, Case No. 16 CA 004                                                          9


       {¶31} Accordingly, the proposed Assignments of Error as to the sufficiency of the

evidence of appellant’s prior conviction are overruled.

                                            II., IV.

       {¶32} We next turn to the merits of appellant's counsel’s and appellant's aforesaid

potential Assignments of Error claiming that trial counsel had been ineffective in failing to

challenge the testimony of State’s forensic chemistry expert Stephanie Laux in light of

Crim.R 16(K).

       {¶33} Crim.R. 16(K) states as follows: “Expert Witnesses; Reports. An expert

witness for either side shall prepare a written report summarizing the expert witness’s

testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the

expert’s qualifications. The written report and summary of qualifications shall be subject

to disclosure under this rule no later than twenty-one days prior to trial, which period may

be modified by the court for good cause shown, which does not prejudice any other party.

Failure to disclose the written report to opposing counsel shall preclude the expert’s

testimony at trial.”

       {¶34} A review of the trial court file in the case sub judice reveals a supplemental

discovery response by the State under case number 15CR106, filed January 12, 2016,

stating that a BCI expert witness report and laboratory report had been delivered to

defense counsel via an independent web portal.

       {¶35} Despite this, in appellant’s application to re-open, he asserted to this Court

that “the record in this case shows that the State failed to provide defense counsel with a

written report by Stephanie Laux which would have revealed what she was going to testify

to at trial ***.” Appellant’s Application for Reopening, April 12, 2017, at 8.
Holmes County, Case No. 16 CA 004                                                      10

      {¶36} Appellant, in his pro se brief, now asserts that “he has not been able to

locate any proof” that his defense counsel was actually provided with Laux’s report on

January 12, 2016. Brief of Appellant at 3.

      {¶37} In determining a claim of ineffective assistance of trial counsel, our review

is limited to the record before us. See State v. Prophet, 10th Dist. Franklin No. 14AP–

875, 2015-Ohio-4997, ¶ 32. Having had the opportunity to more closely review the

discovery aspects of the present case, we find no merit in the proposed assignments of

error that counsel had been ineffective in failing to challenge Laux’s expert testimony on

the basis of the Crim.R 16(K) requirements.

                                       Conclusion

      {¶38} Accordingly, all of the above proposed Assignments of Error are overruled,

and, after independently reviewing the record, we agree with counsel's conclusion that

no arguably meritorious claims presently exist upon which to base further direct appeal.
Holmes County, Case No. 16 CA 004                                                    11


       {¶39} Therefore, despite our prior decision to allow re-opening, we find the

present appeal to be wholly frivolous under Anders, grant counsel's request to withdraw,

and again affirm the judgment of the trial court.

       {¶40} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Holmes County, Ohio, is hereby affirmed.


By: Wise, J.

Delaney, P. J., and

Hoffman, J., concur.



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