[Cite as State v. Grasso, 2013-Ohio-1894.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98813




                                      STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.



                                       MARC GRASSO
                                                            DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-560184

        BEFORE:          Jones, P.J., Kilbane, J., and McCormack, J.

        RELEASED AND JOURNALIZED:                     May 9, 2013
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Mary Weston
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

       {¶1} Defendant-appellant Marc Grasso appeals his conviction for multiple drug

and arson offenses.    We affirm.

                               I.   Procedural History and Facts

       {¶2} In 2012, Grasso was charged with five counts of aggravated arson and one

count each of illegal manufacture of drugs, assembly or possession of chemicals for the

purpose of manufacturing drugs, and drug possession.          The matter proceeded to a bench

trial, at which the following pertinent evidence was presented.

       {¶3} Grasso lived with his girlfriend, codefendant Candace Needs, 1 in the

basement of a Maple Heights home.           The house was owned by Needs’s grandparents,

James Hargrove and Juanita Zicarelli.         Hargrove was 93 years old at the time of the

incident, confined to a wheelchair, and needed oxygen to facilitate his breathing.

Zicarelli used oxygen at night. They lived on the main floor of the house with their son,

Rick Faucett.

       {¶4} The basement was equipped with a bedroom, bathroom, and kitchen.

Neither of the grandparents ever went into the basement; Needs would do her

grandparents’ laundry for them and bring it upstairs so they did not have to go downstairs.

       {¶5} On February 23, 2012, Grasso and Needs were in the basement with a friend,

Nicole Kubinski.      The grandparents and Faucett were also home.                There was an


          Needs pleaded guilty to an amended indictment and was sentenced to a total of eight years
       1


in prison. See State v. Needs, Cuyahoga C.P. No. CR-560184-B.
explosion in the basement and the house caught on fire. All six people in the home were

able to escape. Grasso suffered burns on his hands and Needs sought medical attention

for burns to the trunk of her body and foot.

        {¶6} The entire Maple Heights Fire Department (“M.H.F.D.”) responded to the

fire.   Members of the Maple Heights Police Department and the Bedford Fire

Department also responded.       M.H.F.D. Lieutenant Vytautas Kavaliunas testified he

arrived on the scene and noted smoke coming from the side door of the house, which led

to the basement. Black smoke was pouring out of the eaves of the roof and there was

heavy smoke in the first floor of the home.

        {¶7} Lieutenant Kavaliunas testified that the fire originated in the basement, which

made the fire “inherently dangerous” because of the lack of ventilation.      According to

Lieutenant Kavaliunas, he would expect that anyone in the basement at the time of the

fire would suffer burns and damage to the face and nose from smoke inhalation.           He

further testified that it would only take a breath or two for someone in the home at the

time of the fire to succumb to the effects of the carbon monoxide; the potential harm to a

person with breathing difficulties was even greater.

        {¶8} The firefighters noted that the stairwell going into the basement was

extensively burned and the fire had accelerated into the first floor of the home and up into

the attic.   Lieutenant Kavaliunas testified he first became suspicious of the cause of the

fire when he noticed that it appeared to originate in two different areas of the basement –

in the kitchen and near a bed.   The M.H.F.D. contacted the State Fire Marshal’s office to
investigate.

       {¶9} Brian Peterman, a state fire marshal, responded to the scene the next morning

and immediately noticed several items in the basement that, to him, were indicative of a

methamphetamine lab, or “meth” lab.      He opined that the fire started when someone was

making, or “cooking,” methamphetamine.

       {¶10} Peterman agreed that the fire originated in two places.       He testified that

someone tried to carry the container being used to make the drug into another area of the

basement, which is how the second fire started, catching the mattress on fire. This

movement of the container, according to Peterman, would burn a person’s hands.

       {¶11} Peterman opined that the fire was not an accident, because people who

manufacture methamphetamine know they are creating a hazard that can cause fire.

       {¶12} Peterman further testified that there was no evidence the fire was caused by

cooking food, the production of methamphetamine is very toxic, and the fire could have

totally destroyed the house if the fire department had not responded so quickly.

       {¶13} Southeast Area Law Enforcement Bureau’s (“SEALE”) Detective Bill Gall

secured a search warrant for the premises and arrived on the scene to collect evidence.

Detective Gall took pictures and set about collecting evidence that, in his experience, is

used to make methamphetamine.         He observed and collected a melted plastic filter,

coffee filters, glass jars, a measuring cup, a respirator, several plastic two-liter bottles,

various paraphernalia used to ingest drugs, a can of Coleman fuel, plastic baggies, plastic

tubing, a tourniquet, multiple packs of lithium batteries, multiple syringes, a can of
acetone, containers of drain cleaner, light bulbs modified into smoking devices, a digital

scale, aluminum foil, and packets of cold medicine.

       {¶14} Detective Gall also recovered various items from the garage: several plastic

bottles with tubing and waste product leftover from methamphetamine production, empty

packs of pseudoephedrine, store receipts, coffee filters, plastic tubing, an envelope

addressed to Grasso that contained spent lithium battery strips, and an empty Coleman

fuel can.

       {¶15} Detective Gall testified that he recovered residue in some of the plastic

baggies and suspected it was end-product methamphetamine.            He field-tested the

residue; the test came back positive for methamphetamine.      He forwarded the baggies

and additional objects for testing to the Ohio Bureau of Criminal Investigation (“BCI”).

He then collected as much evidence as was safe but packaged the rest for destruction due

to the hazardous nature of the material.

       {¶16} BCI special agent Gary Miller testified for the state as an expert in

methamphetamine production.        He opined that the methamphetamine process that

caused the fire was the “one-pot” method, in which a single container is used.         He

identified other ingredients found in the basement and garage that are used to make

methamphetamine: pseudoephedrine, cold packs, drain cleaner, acetone or fuel, and

lithium batteries.

       {¶17} Miller explained the chemical process by which the drug is made.          He

described the bottles depicted in the photographs of the crime scene and explained how
they were used as gas generators as part of the cooking process.   Miller testified that one

of the two-liter bottles showed residue from the cooking process, evidencing that

methamphetamine had been produced at a previous time at this location.

       {¶18} Miller testified that a user can use methamphetamine by smoking, snorting,

eating, or injecting the drug. If smoked, meth is usually smoked using a glass pipe,

modified light bulbs or “foil canoes,” such as those the police found in the basement of

the Maple Heights house.    If the user is injecting the drug, he or she would use a syringe

and a “tie-off” or tourniquet, like that which was found in the basement.

       {¶19} Miller explained that because pseudoephedrine is an essential ingredient and

because Ohio limits the amount a person can purchase, meth cookers often ask other

people to buy pseudoephedrine for them; these straw buyers are referred to as “smurfs.”

       {¶20} Miller testified that although each individual ingredient used to produce

methamphetamine may have an “innocent” use, he determined that the basement lab was

a meth lab based on the “LQC” rule, which stands for “Location, Quantity, Combination.”

 Because all of the components needed to produce methamphetamine, as well as inject

and smoke the drug, were located in the basement in multiple quantities, the basement

was both a meth lab and a place were the drug was used.

       {¶21} The grandmother testified that she had lived at the Maple Heights home for

30 years. On the night of the explosion, the grandmother was in bed with her breathing

mask on when she heard a “big bang.”      Grasso ran up and yelled there was a fire.   The

grandmother ran outside.    Grasso picked up the grandfather, carried him outside, and
threw him on the ground.

       {¶22} Local CVS pharmacy manager Brian Boyle testified that he reviewed

pharmacy records and discovered that, on January 6, 2012, Grasso purchased

pseudoephedrine, an ingredient used in making methamphetamine. Kubinski, who was

in the basement at the time of the explosion, and her sister, Jamie, also purchased

pseudoephedrine on three separate days in January and February 2012.

       {¶23} In jailhouse recordings, Grasso admitted he lived at the Maple Heights

home, had been burned in the fire, what happened was his fault, and he was sorry for

hurting Needs’s grandfather.    He stated, “Tell [the grandfather] I’m sorry I injured him”

and “It’s my * * * fault. I shoulda just stuck to selling weed. None of us would be in

any trouble.”   During a call to Needs, he told her to go try and recover any leftover

batteries and that she did not deserve to go to jail because she did not do anything wrong.

 During one call he talked about one of their “smurf runs.”

       {¶24} The trial court convicted Grasso of all charges.            The court ordered a

psychiatric mitigation report and a presentence investigation report.       At the sentencing

hearing, the trial court merged the drug charges and the state elected to proceed to

sentencing on the illegal manufacture of drugs count.       The trial court sentenced Grasso

to seven years in prison for the drug conviction to run consecutive to three years for the

aggravated arson counts.     The trial court ordered the aggravated arson counts to run

concurrent to each other, for a total sentence of ten years in prison.

                                   II.   Law and Analysis
       {¶25} Grasso now appeals, raising the following assignments of error for our

review, as quoted:

       I. The trial court erred in entering a verdict of guilty of aggravated arson on
       Counts 4, 5, 6, 7, and 8 of the indictment that was not supported by
       sufficient evidence, in violation of the Defendant’s right to due process of
       law under the Fourteenth Amendment to the United States Constitution.


       II. The Defendant’s sentence was contrary to law, and an abuse of
       discretion, in that the trial court imposed consecutive sentences without
       making the findings required by R.C. 2929.14(C)(4).

       III. Defendant was denied due process of law when the court improperly
       sentenced defendant in the absence of special findings when the verdict was
       announced.

       IV. Defendant was denied due process of law when he was convicted of
       offenses for which there was material variance.

       V.   Defendant was denied effective assistance of counsel.

                             A.   Sufficiency of the Evidence

       {¶26} In the first assignment of error, Grasso argues that his aggravated arson

convictions were not supported by sufficient evidence.

       {¶27} A challenge to the sufficiency of the evidence supporting a conviction

requires the court to determine whether the state has met its burden of production at trial.

State v. Givan, 8th Dist. No. 94609, 2011-Ohio-100, citing State v. Thompkins, 78 Ohio

St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. On review for sufficiency, courts are to

assess not whether the state’s evidence is to be believed, but whether, if believed, the

evidence against a defendant would support a conviction. Id.

       {¶28} 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. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶29} Grasso was convicted of four counts of aggravated arson in violation of

R.C. 2909.02(A)(1), which provides that “[n]o person, by means of fire or explosion,

shall knowingly * * * [c]reate a substantial risk of serious physical harm to any person

other than the offender.”   Grasso was also convicted of one count of aggravated arson in

violation of R.C. 2909.02(A)(2), which provides that “[n]o person, by means of fire or

explosion, shall knowingly * * * [c]ause physical harm to any occupied structure.”

       {¶30} Grasso contends that the state failed to show sufficient evidence that he

acted “knowingly,” i.e., the state failed to establish that Grasso knew his actions would

probably result in a fire or explosion that created a substantial risk of serious physical

harm to another person or caused physical harm to the house.    The term “knowingly” is

defined by R.C. 2901.22(B):

       A person acts knowingly, regardless of his purpose, when he is aware that

       his conduct will probably cause a certain result or will probably be of a

       certain nature.   A person has knowledge of circumstances when he is

       aware that such circumstances probably exist.

       {¶31} We find that the state showed sufficient evidence that Grasso had

knowledge that producing or cooking methamphetamine could probably result in a fire or

explosion. BCI agent Miller testified that the process of producing methamphetamine is
volatile, and that certain ingredients are caustic, highly reactive.     Part of the process

“gets hot enough to ignite, burns 1,200 degrees.”      Methamphetamine producers “have a

heat source.   The vapors coming off of there are extremely volatile and dangerous.”

Miller explained how a methamphetamine cooker has to heat up a plastic container filled

with solvents and alcohol as part of the cooking process. Part of the process is to create

chemical reactions, “chemical heat.”       He further testified that the “reaction happens in

the bottle. It’s very volatile. It gets to rolling. The lithium metal will react and you’ll

see flames inside the [plastic] bottle.”

        {¶32} Miller explained how a one-pot cooking method can “fail,” or catch on fire

or explode.    If the person making the drug does “burp the bottle,” by repeatedly

releasing the air from the bottle, it can “blow the top off and pieces come out and catch on

fire.” Or, he explained, the lithium

        gets trapped against the plastic down at the bottom or the side [of the
        bottle]. And the water, because it’s getting generated, hits it and it burns
        at 1,200 degrees and melts the whole inside of the container. And since
        it’s under pressure [it ignites.]

        {¶33} Miller opined that the fire was caused by a meth lab based on both the burn

patterns he saw in the evidence photographs and the vast amount of evidence that was

collected from the scene that contained all the ingredients needed to manufacture the

drug.

        {¶34} Fire Marshall Peterson testified that when he entered the basement of the

home and saw the Coleman fuel can, he immediately suspected that a meth lab had caught

fire. He opined that Grasso sustained the burns to his hands trying to carry the “one-pot”
container from one area of the basement to the other after it caught fire.   He also opined

that the vapors or fumes that arise during methamphetamine production are “deadly,” and

there is a “fire” and “heated gas”   that creates toxic smoke.

       {¶35} When asked by the state what the potential dangers of methamphetamine

production are, he stated that making meth is

       [v]ery dangerous with the amount of chemicals, such as the Coleman fuel,
       very flammable liquid, and then the use of those lithium batteries. The
       amount of lithium batteries that were collected [in the basement] could have
       totally destroyed the whole house if the fire department hadn’t gotten there
       quickly.

He also explained that a person making the drug would use a respirator so as not to

breathe in the vapors.

       {¶36} When asked by defense counsel if the fire was an accident based on reckless

production of the drug, Peterson answered:

       Peterson: I think that they know when they’re creating or manufacturing the
       meth what the hazards are, what the dangers are in that.

       Defense Counsel:     But the fire itself was an accident, you’ll agree with me,
       in all fairness?

       Peterson: No, I’m not going to say that. They know when they’re in

       there making meth they’re creating that hazard. They’re intentionally

       making an illegal substance, which created a hazard that caused fire.

       {¶37} The propriety of an offender who operates a methamphetamine lab that

catches fire being charged with arson appears to be a case of first impression in Ohio.   In

looking to other states, however, we found arson statutes that deal specifically with fires
caused by methamphetamine labs. See 569.040 R.S.Mo. (Missouri) (“A person commits

the crime of arson in the first degree * * * [b]y starting a fire or explosion, damages a

building or inhabitable structure in an attempt to produce methamphetamine”); Texas

Pen. Code 28.02(a-1) (“A person commits an offense if the person recklessly starts a fire

or causes an explosion while manufacturing or attempting to manufacture a controlled

substance and the fire or explosion damages any building, habitation, or vehicle.”)

       {¶38} Further, the risk of fire from methamphetamine production is evident in

Ohio law. R.C. 2933.33(A) provides:

       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.

       {¶39} “It is clear that the legislature has deemed the very real threat of explosion

and fire due to the volatility of the materials used to produce methamphetamine a

sufficient enough threat to justify warrantless searches.” State v. Sandor, 9th Dist. No.

23353, 2007-Ohio-1482, ¶ 11. We discuss this issue more under the fifth assignment of

error; at this juncture, we find the statute instructive as it shows the legislature’s
knowledge of the risk of fires incident to methamphetamine production.

       {¶40} Based on the above testimony, there was sufficient evidence to support that

Grasso knowingly engaged in an activity that would probably cause a fire, i.e., producing

methamphetamine.       Not only were the ingredients used in cooking the drug highly

flammable, but part of the process in making the drug is to create an actual fire inside a

plastic bottle.   Moreover, there were multiple vessels found in the basement and garage

that evidenced that prior batches of methamphetamine had been produced in the basement

of the house.

       {¶41} In light of the above, the arson convictions were supported by sufficient

evidence.    The first assignment of error is overruled.

                                      B. Sentencing

       {¶42} In the second assignment of error, Grasso argues that the trial court erred in

sentencing him to consecutive terms of incarceration.

       {¶43} R.C. 2929.14(C)(4) provides that if multiple prison terms are imposed on an

offender for convictions of multiple offenses, the trial court may require the offender to

serve the prison terms consecutively if (1) the court finds that the consecutive sentence is

necessary to protect the public from future crime or to punish the offender; (2) that the

consecutive sentence is not disproportionate to the seriousness of the offender’s conduct

and to the danger the offender poses to the public; and (3) if the court also finds any of

the following:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction imposed
         pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
         was under post-release control for a prior offense.

         (b) At least two of the multiple offenses were committed as part of one or
         more courses of conduct, and the harm caused by two or more of the
         multiple offenses so committed was so great or unusual that no single
         prison term for any of the offenses committed as part of any of the courses
         of conduct adequately reflects the seriousness of the offender’s conduct.

         (c) The offender’s history of criminal conduct demonstrates that

         consecutive sentences are necessary to protect the public from future crime

         by the offender.

R.C. 2929.14(C)(4)(a)-(c).

         {¶44} Thus, a sentencing court must analyze whether consecutive sentences are

necessary to protect the public or punish the offender, are not disproportionate, and make

one additional finding listed in R.C. 2929.14(C)(4)(a)-(c).

         A trial court satisfies this statutory requirement when the record reflects that
         the court has engaged in the required analysis and has selected the
         appropriate statutory criteria.

State v. Goins, 8th Dist. No. 98256, 2013-Ohio-263, ¶ 10, citing State v. Edmonson, 86

Ohio St.3d 324, 326, 1999-Ohio-10, 715 N.E.2d 131.

         {¶45} In making these findings, a trial court is not required to use “talismanic

words to comply with the guidelines and factors for sentencing.”           Goins at id., citing

State v. Brewer, 1st Dist. No. C-000148, 2000 Ohio App. LEXIS 5455, *10 (Nov. 24,

2000).     But it must be clear from the record that the trial court actually made the findings

required by statute. Goins at id. A trial court satisfies this statutory requirement when

the record reflects that the court has engaged in the required analysis and has selected the
appropriate statutory criteria. Id.

       {¶46} An appellate court must conduct a meaningful review of the trial court’s

sentencing decision.    State v. Johnson, 8th Dist. No. 97579, 2012-Ohio-2508, ¶ 6, citing

State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892. R.C. 2953.08(G)(2) provides that

an appellate court must “review the record, including the findings underlying the sentence

or modification given by the sentencing court.” Johnson at id. If an appellate court

clearly and convincingly finds either that (1) “the record does not support the sentencing

court’s findings under [R.C. 2929.14(C)(4)]” or (2) “the sentence is otherwise contrary to

law,” then “the appellate court may increase, reduce, or otherwise modify a sentence * * *

or may vacate the sentence and remand the matter to the sentencing court for

resentencing.” Id.

       {¶47} In the case at bar, the trial court stated:

       This is a very serious case. * * * It should not come as a surprise to anyone
       that meth labs explode.

       ***

       [Counts 4, 5, 6, 7, and 8 will be] concurrent with each other,

                       but consecutive to Count 1. The court does

                       find that to do otherwise would demean the

                       seriousness of the offense. Communities need

                       to be protected from explosions, especially

                       communities like Maple Heights where the

                       homes are very close together.      It’s not a farm
                       where the risk of igniting another residence of

                       someone would be far less than here. I doubt

                       that these lots are more than 50 feet wide in

                       Maple Heights, maybe 70 at best.      So they’re

                       in close proximity to innocent neighbors and,

                       obviously there were innocent people in this

                       house that, from all statements of counsel,

                       didn’t even know there was a meth lab going on

                       in the basement of their house, elderly people.



          {¶48} These statements amount to a finding that consecutive sentences are not

disproportionate to the seriousness of Grasso’s conduct and the danger he poses to the

public.     Thus, while the court did not use the precise language in the statute, the record

reflects that the court engaged in the required analysis and selected the appropriate

statutory criteria. See State v. Drobny, 8th Dist. No. 98404, 2013-Ohio-937; Goins, 8th

Dist. No. 98256, 2013-Ohio-263 (finding the record offered evidence that the trial court

fully engaged in the R.C. 2929.14(C)(4) analysis, even though specific findings were not

stated on the record); State v. Jackson, 8th Dist. No. 98354, 2013-Ohio-372; but see State

v. Battle, 8th Dist. No. 98294, 2013-Ohio-816 (trial court failed to expressly address the

R.C. 2929.14(C)(4) factors and there was insufficient evidence in the record to show a

reasoned consideration of the factors).
       {¶49} That being said, trial courts can ensure compliance with the sentencing

statutes by utilizing a worksheet and memorializing their findings from that worksheet on

both the record and in the court’s journal entry.

       Because a trial court speaks only through its journal, we have long approved
       the use of a sentencing-findings worksheet to document that the trial court
       has made the required findings.

State v. Jones, 8th Dist. No. 98371, 2013-Ohio-489, ¶ 47 (Gallagher, S., concurring),

citing State v. Alexander, 1st Dist. Nos. C-110828 and C-110829, 2012-Ohio-3349.

       {¶50} Grasso also argues that the trial court failed to give reasons to support its

findings. But the General Assembly deleted R.C. 2929.19(B)(2)(c) in H.B. 86; this was

the provision in S.B. 2 that had required sentencing courts to state their reasons for

imposing consecutive sentences on the record. State v. Simonoski, 8th Dist. No. 98496,

2013-Ohio-1031, ¶ 20. Accordingly, a trial court is not required to articulate and justify

its findings at the sentencing hearing. Id.

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

                                C.   Indictment and Verdict

       {¶52} In the third assignment of error, Grasso claims that the trial court erred in

returning its verdict without placing on the record that the type of drug involved was

methamphetamine, as opposed to marijuana.

       {¶53} This argument lacks merit.       The trial court announced its verdict on the

record.   The trial court was not required to fill out verdict forms as there are no verdict

forms in a bench trial. See State v. Sims, 8th Dist. No. 89621, 2007-Ohio-6821, ¶ 19.
      {¶54} The court was also not required to specify the type of drug as the state

alleged the type of drug in the indictment. Although the fire marshal testified he saw

something that appeared to be marijuana in the basement, no marijuana was seized or

tested, and Grasso was not charged in this indictment with any marijuana-related crimes.

      {¶55} The third assignment of error is overruled.

                                   D. Date of Offense

      {¶56} In the fourth assignment of error, Grasso argues that he was denied due

process of law because there was no evidence that he committed the offense on February

23, 2012, as charged in Count 2 of the indictment.

      {¶57} Count 2 of the indictment charged that on or about February 23, 2012, in

violation of R.C. 2925.041(A), Grasso “did 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, to wit,

methamphetamine.”

      {¶58} Grasso claims that he could not be convicted of this count because the only

evidence   the   state   offered   showing   Grasso    purchased   materials   to   make

methamphetamine was a January 6, 2012 receipt for pseudoephedrine.          But the state

provided ample evidence that Grasso possessed, either personally or constructively, the

ingredients needed to make methamphetamine and was, in fact, in possession of the

ingredients on February 23, 2012, when the explosion occurred. R.C. 2925.041(B) only

requires assembly or possession of a single chemical necessary in the manufacture of a
controlled substance, but here, the police and fire marshal recovered all the ingredients

from the basement and garage that are necessary to make methamphetamine.

       {¶59} The fourth assignment of error is without merit and overruled.

                           E.   Ineffective Assistance of Counsel

       {¶60} In the fifth and final assignment of error, Grasso claims he was denied

effective assistance of trial counsel.

       {¶61} To establish ineffective assistance of counsel, a defendant must demonstrate

that counsel’s performance fell below an objective standard of reasonable representation

and that he was prejudiced by that performance. State v. Drummond, 111 Ohio St.3d 14,

2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant

demonstrates

       a reasonable probability that, but for counsel’s unprofessional errors, the
       result of the proceeding would have been different. A reasonable
       probability is a probability sufficient to undermine confidence in the
       outcome.

Strickland at 694.

       {¶62} In evaluating a claim of ineffective assistance of counsel, a court must be

mindful that there are countless ways for an attorney to provide effective assistance in a

given case, and it must give great deference to counsel’s performance. Id. at 689.    Trial

tactics and strategies do not constitute a denial of effective assistance of counsel. State

v. Gooden, 8th Dist. No. 88174, 2007- Ohio-2371, ¶ 38, citing State v. Clayton, 62 Ohio

St.2d 45, 402 N.E.2d 1189 (1980).
       {¶63} Grasso claims counsel was ineffective for (1) failing to file a motion to

suppress; (2) not seeking a mental evaluation of him; and (3) failing to object to the

jailhouse recordings and certain witness testimony.

                                   i. Motion to Suppress

       {¶64} Grasso argues that his counsel should have filed a motion to suppress the

warrantless search of the house.

       {¶65} It is well established that firefighters and police are authorized to remain on

the scene for a reasonable time to investigate the cause, origin and circumstances of the

fire. State v. Behrens, 8th Dist. No. 63837, 1993 Ohio App. LEXIS 5549, *9 (Nov. 18,

1993), citing Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984).

In fact, pursuant to R.C. 3737.24, a fire marshal has two days, not including Sunday, to

begin his or her investigation of a fire.

       {¶66} Lieutenant Kavaliunas testified that he became suspicious of the fire

because it appeared to originate in two different places in the basement.          The fire

department boarded up the house and secured the scene until they could return in the

daylight.   Fire Marshal Peterman responded to the scene and contacted members of

SEALE, who obtained a search warrant for the premises.         Thus, the additional search

and the seizure of all items was pursuant to a warrant.

       {¶67} Moreover, we realize the danger to the community that a meth lab poses.

The Ohio legislature, in enacting R.C. 2933.33(A), has recognized the potential

exigencies, independent of those of a fire, created by an illegal methamphetamine
laboratory.

       {¶68} Based on these facts, the trial court would likely have denied any motion to

suppress the evidence seized from the premises.    Thus, Grasso fails to demonstrate that

his counsel was ineffective on this basis.

                               ii.   Competency Evaluation

       {¶69} Next, Grasso claims his attorney was ineffective for failing to request a

competency evaluation.

       {¶70} A defendant is presumed to be competent to stand trial unless proof by a

preponderance of the evidence is presented as to the defendant’s incompetency. State v.

Berry, 72 Ohio St.3d 354, 360, 1995-Ohio-310, 650 N.E.2d 433. A defendant is legally

incompetent if “incapable of understanding the nature and objective of the proceedings

against [him] or of assisting in [his] defense[.]” R.C. 2945.37(G); State v. Tibbetts, 92

Ohio St.3d 146, 164, 2001-Ohio-132, 749 N.E.2d 226.

       {¶71} A defendant has the right to a hearing on the issue of competency “where

the record contains ‘sufficient indicia of incompetence,’ such that an inquiry into the

defendant’s competency is necessary to ensure the defendant’s right to a fair trial.”

Berry at 359, citing Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103

(1975).   But defense counsel need not raise meritless issues or even all arguably

meritorious issues.   State v. Taylor, 78 Ohio St.3d 15, 31, 1997-Ohio-243, 676 N.E.2d

82.

       {¶72} In this case, there was no indication Grasso had any mental health issues
until sentencing.   The record also does not indicate that his mental health in any way

affected his ability to assist in his own defense. Grasso has failed to demonstrate any

prejudice or to show that had his counsel requested a competency evaluation that the

results of his trial would have been different.

                                   iii.   Failure to Object

       {¶73} Finally, Grasso claims that his counsel was ineffective for failing to object

to the “inaudible” jailhouse recordings and for failing to object to the prosecutor’s

argument that Grasso’s hands were burned.

       {¶74} As to the jailhouse recordings, there is nothing in the record to indicate that

they were inaudible.    Moreover, in a bench trial, the trial court is presumed only to allow

into evidence that evidence which is relevant and admissible. State v. Gale, 8th Dist.

No. 94872, 2011-Ohio-1236, ¶ 22.



       {¶75} As to whether Grasso’s hands were burned, Grasso himself admitted on the

jailhouse recordings that his hands indeed suffered burns. Thus, the prosecutor did not

err in arguing the point, nor did defense counsel err in failing to object.

       {¶76} In light of the above, Grasso was not afforded ineffective assistance of trial

counsel.

       {¶77} The fifth assignment of error is overruled.

       {¶78} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.
       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
TIM McCORMACK, J., CONCUR
