[Cite as State v. Ruddock, 2012-Ohio-2711.]


                                       COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :      JUDGES:
                                              :
                                              :      Hon. Patricia A. Delaney, P.J.
                       Plaintiff-Appellee     :      Hon. William B. Hoffman, J.
                                              :      Hon. Julie A. Edwards, J.
-vs-                                          :
                                              :      Case No. 11-CA-94
LUCAS S. RUDDOCK                              :
                                              :
                                              :
                      Defendant-Appellant     :      OPINION



CHARACTER OF PROCEEDING:                          Appeal from the Licking County Court of
                                                  Common Pleas, Case No. 11-CR-94


JUDGMENT:                                         AFFIRMED



DATE OF JUDGMENT ENTRY:                           June 13, 2012



APPEARANCES:

For Appellant:                                       For Appellee:

ROBERT C. BANNERMAN                                  KENNETH OSWALT
P.O. Box 77466                                       LICKING COUNTY PROSECUTOR
Columbus, OH 43207-0098                              BRIAN WALTZ
                                                     20 S. 2nd St., 4th Floor
                                                     Newark, OH 43055
[Cite as State v. Ruddock, 2012-Ohio-2711.]


Delaney, J.

        {¶1} Appellant Lucas S. Ruddock appeals from the August 12, 2011 judgment

entry of conviction and sentence entered in the Licking County Court of Common

Pleas on August 12, 2011. Appellee is the state of Ohio.

        {¶2} This case arose when Detective Kris Kimble of the Central Ohio Drug

Enforcement Task Force set out to review the pseudoephedrine logs of local

pharmacies,       looking     for    anyone   buying   products      containing   ephedrine     or

pseudoephedrine in unusual amounts. These products contain an ingredient in the

manufacture of methamphetamine.               In Ohio, an individual may purchase products

containing up to 3.6 grams of pseudoephedrine in one day, but no more than 9 grams

in 30 days.

        {¶3} All       Ohio     pharmacies     are   required   to   maintain     logs   of   their

pseudoephedrine sales.            These logs indicate the name of the purchaser and the

amount of grams purchased. The problem, however, is that these logs are not linked

between pharmacies.            In other words, purchasers going to a number of different

pharmacies aren’t caught until someone collects and reviews all of the logs. Some

pharmacy chains do have their own internal links, but at this time, there is no

statewide system for comparison of the logs.

        {¶4} Consequently, detectives like Kimble periodically review the logs for

unusual purchase amounts. During his review, the names of appellant and Alisha

Cole came up several times in a number of pharmacies throughout Licking County.

Kimble gathered enough logs to establish appellant and Cole exceeded the allowed

amounts, and went to the couple’s apartment to speak to them. At the time of this
Licking County, Case No. 11-CA-94                                                     3


investigation, appellant and Cole lived together at Apt. 106-G Lakewood Drive,

Hebron, Licking County.

      {¶5} Appellant opened the door and allowed Kimble to come in.              Kimble

spoke with appellant and Cole together. Kimble advised them of their Miranda rights,

advised them of the open investigation, and asked why they purchased so much

pseudoephedrine.

      {¶6} Alisha Cole first claimed she bought the pseudoephedrine because she

was sick, but Kimble replied that it didn’t make sense to buy more than 10 grams in 30

days. Cole eventually admitted she bought the pills to trade for methamphetamine.

She stated two boxes of pseudoephedrine products could be traded for a quarter gram

of methamphetamine. Cole provided the name of the individual to whom she provided

the pills. Cole was explicit as to the purpose of the trade: she traded the pills to the

individual to enable that person to manufacture more methamphetamine.

      {¶7} Appellant stated that he did the same thing, and provided the pills he

obtained to the same person. Appellant provided the name and address where the

meth was being manufactured.

      {¶8} Kimble advised that it’s not uncommon for meth manufacturers to send

others into pharmacies to obtain the necessary pseudoephedrine.         Sometimes the

buyers use fake IDs to avoid being caught. In this case, appellant and Cole used their

own names and addresses.

      {¶9} Kimble obtained written statements from both appellant and Cole.

Appellant acknowledged he knew the pills he traded were being used to manufacture

meth. Appellant’s written statement noted he and Cole bought Sudafed at pharmacies
Licking County, Case No. 11-CA-94                                                        4


to trade 2 boxes for a quarter gram of meth.         The statement also contained the

address where he believed the manufacture was taking place.

       {¶10} Kimble and investigators obtained consent to search and looked around

the apartment.     They found an assortment of drug paraphernalia and “finished

product,” including straws for snorting meth, razors, a Kroger card used to cut meth, a

mirror someone used to snort meth, and a large black bag containing a “starter kit” for

a “mini meth lab.” In the master bedroom, investigators discovered meth residue and

marijuana on the bed.

       {¶11} The black bag contained several pieces of rubber tubing, containers,

jars, starter fluid, clear fuel, a strainer, and coffee filters. Kimble noted these are the

majority of components used in the manufacture of methamphetamine, and there is no

reason someone would have four cans of starter fluid together with these other

“ingredients” for any legitimate purpose.

       {¶12} Investigators held up the black bag and asked who it belonged to, and

appellant stated the bag and everything found in the bedroom was his. Kimble stated

it was a “mini meth lab” and appellant still acknowledged it was his.

       {¶13} Appellee called pharmacy employees from Kroger and CVS to testify as

to their pseudoephedrine logs showing appellant’s purchases and their policies when

a customer purchases a product containing pseudoephedrine.

       {¶14} Investigators found a plastic baggie containing what proved to be meth

residue, and appellant stated it was his.

       {¶15} Appellant was initially charged by indictment with one count of illegal

assembly or possession of chemicals used to manufacture a controlled substance
Licking County, Case No. 11-CA-94                                                                    5


[R.C. 2925.041(A)(C)], a felony of the third degree, and one count of aggravated

possession of drugs [R.C. 2925.11(A)(C)(1)(a)], a felony of the fifth degree.1

        {¶16} The original indictment was dismissed by the state and appellant was re-

indicted on the same charges.

        {¶17} Appellant entered a plea of not guilty and the case proceeded to trial by

jury. Appellant moved for judgment of acquittal pursuant to Crim.R. 29(A) at the close

of the state’s evidence and at the close of all of the evidence; the motions were

overruled.

        {¶18} Appellant was found guilty of the count of illegal assembly and not guilty

of the count of aggravated drug possession. The trial court sentenced him to an

aggregate prison term of four years, which included three years for illegal assembly

and one year for committing the offense while on postrelease control.

        {¶19} Appellant appeals from his conviction and sentence.

        {¶20} Appellant raises two Assignments of Error:

        {¶21} “I. APPELLANT’S CONVICTION WAS INSUFFICIENT AS A MATTER

OF LAW AND/OR AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

(REFLECTED IN TRIAL TRANSCRIPT).”

        {¶22} “II.   THE TRIAL COURT ERRED BY ALLOWING PREJUDICIAL CO-

DEFENDANT HEARSAY AND UNDISCLOSED WITNESS TESTIMONY TO GO TO

THE JURY (REFLECTED IN TRIAL TRANSCRIPT).”




1
  Appellant was also charged with one count of possession of marijuana, a minor misdemeanor
pursuant to R.C. 2925.11(A)(C)(3)(a). This count was tried to the court and appellant was found guilty;
he was fined $100 plus court costs. This count is not at issue in this appeal.
Licking County, Case No. 11-CA-94                                                      6


      {¶23} In his first assignment of error, appellant challenges the sufficiency and

weight of the evidence upon which his conviction rests.

      {¶24} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78

Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. 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 guilty 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} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing

the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence,

the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, at

387, 678 N.E.2d 541. Reversing a conviction as being against the manifest weight of

the evidence and ordering a new trial should be reserved for only the “exceptional

case in which the evidence weighs heavily against the conviction.” Id.
Licking County, Case No. 11-CA-94                                                     7


      {¶26} Appellant was convicted of one count of assembly or possession of

chemicals used to manufacture a controlled substance with intent to manufacture a

controlled substance pursuant to R.C. 2925.041(A), which states, “No person shall

knowingly assemble or possess one or more chemicals that may be used to

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

controlled substance in schedule I or II in violation of section 2925.04 of the Revised

Code.”

      {¶27} Appellant essentially argues that he was charged with the wrong offense.

He asserts that the evidence at trial may have shown he purchased pseudoephedrine

in greater amounts than the law allows, but the evidence does not show that he knew

it would be used to manufacture more methamphetamine. We disagree.

      {¶28} The record amply demonstrates appellant’s involvement and criminal

culpability in a scheme in which he and his girlfriend purchased pseudoephedrine

products at various local pharmacies for the purpose of trading the pills for

methamphetamine. Appellant acknowledged verbally and in writing the pills would be

used to manufacture more methamphetamine. Appellant possessed a “mini meth lab”

and the finished product, along with tools for consumption of the finished product. He

bought pseudoephedrine, a key ingredient, in quantities exceeding those necessary

for legitimate personal use.

      {¶29} Appellant’s conviction, in short, is supported by sufficient evidence and is

not against the manifest weight of the evidence.

      {¶30} Appellant’s first assignment of error is overruled.
Licking County, Case No. 11-CA-94                                                                    8


         {¶31} In his second assignment of error, appellant argues that the trial court

erred in admitting certain evidence. We disagree.

         {¶32} We note the admission or exclusion of evidence is a matter left to the

sound discretion of the trial court. Absent an abuse of discretion resulting in material

prejudice to the defendant, a reviewing court should be reluctant to interfere with a

trial court’s decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224

N.E.2d 126 (1967).

         {¶33} Appellant     asserts     a        portion    of     Kimble’s    testimony   constitutes

impermissible hearsay.        The hearsay appellant complains of, although not entirely

clear,    is   Kimble’s     recounting       of     Cole’s        explanation   for   purchasing   the

pseudoephedrine.          We note appellant raised only one objection to this line of

questioning: when appellee initially elicited the information that Cole claimed at first

she bought the pills because she was sick. Defense trial counsel objected, and the

trial court at first sustained the objection and then overruled it when the state

explained that Cole’s statements provided the context for appellant’s statements to

police, which agreed with Cole’s.

         {¶34} Appellant did not renew his objection or raise any additional objection as

the state elicited Cole’s full statement, including the admission that the pills were

purchased to trade for methamphetamine. Appellant has therefore waived all but plain

error.

         {¶35} Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.”

The rule places several limitations on a reviewing court’s determination to correct an
Licking County, Case No. 11-CA-94                                                         9


error despite the absence of timely objection at trial: (1) “there must be an error, i.e., a

deviation from a legal rule,” (2) “the error must be plain,” that is, an error that

constitutes “an ‘obvious’ defect in the trial proceedings,” and (3) the error must have

affected “substantial rights” such that “the trial court’s error must have affected the

outcome of the trial.” State v. Dunn, 5th Dist. No. 2008-CA-00137, 2009-Ohio-1688,

citing State v. Morales, 10 Dist. Nos. 03-AP-318, 03-AP-319, 2004-Ohio-3391, at ¶ 19

(citation omitted). The decision to correct a plain error is discretionary and should be

made “with the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.” Barnes, supra, quoting State v. Long, 53 Ohio St.2d

91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

       {¶36} Admission of Cole’s full statement does not constitute plain error. Even

if the statement constituted impermissible hearsay, the error could not have had any

effect on the outcome of the trial because appellant’s statement agreed with Cole’s.

After testifying that Cole told Kimble they traded the pseudoephedrine to someone

named “Jen Cruz” for meth, Kimble further testified “* * *. [Appellant] chimes in after

Alisha says that and says he does the same thing, and he specifically says Jen Cruz,

and he wrote that in his statement also.”

       {¶37} Appellant    contends     this   statement   is   meaningless    without   the

impermissible hearsay, and should not have been allowed for the truth of the matter

asserted, i.e. to establish appellant knew the Sudafed would be used for the

manufacture of methamphetamine. We disagree; upon further review of the record,

Kimble testifies appellant specifically told him, verbally and in writing, that he traded

the pills to Cruz for a quarter gram of methamphetamine which was being
Licking County, Case No. 11-CA-94                                                  10


manufactured at an address appellant was uncertain of. No plain error exists upon the

record.

       {¶38} Appellant further argues the trial court should not have permitted

Detective Boerstler to testify at all.      Boerstler’s name had been provided to the

defense as a state’s witness in an earlier indictment against appellant, which was

dismissed.    Upon appellant’s re-indictment in the instant case, appellant did not

request discovery. Appellant’s trial counsel acknowledged receipt of discovery from

the original indictment, however, and the trial court overruled counsel’s objection to

Boerstler’s testimony.

       {¶39} Appellee’s duty to disclose witnesses is triggered by appellant’s written

demand pursuant to Crim.R. 16, and no such demand was made in this case.

Appellant therefore waived any objection to Boerstler’s testimony. We further note

Boerstler’s brief testimony merely corroborated Kimble’s testimony about what

happened when appellant and Cole were interviewed at the apartment. The trial court

did not err in allowing Boerstler to testify.

       {¶40} Appellant’s second assignment of error is overruled.
Licking County, Case No. 11-CA-94                                          11


      {¶41} Having overruled both of appellant’s assignments of error for the

foregoing reasons, the judgment of the Licking County Court of Common Pleas is

affirmed.

By: Delaney, P.J.

Hoffman, J. and

Edwards, J. concur.



                                    HON. PATRICIA A. DELANEY



                                    HON. WILLIAM B. HOFFMAN



                                    HON. JULIE A. EDWARDS
[Cite as State v. Ruddock, 2012-Ohio-2711.]


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                   :
                                                :
                                                :
                       Plaintiff-Appellee       :
                                                :
-vs-                                            :   JUDGMENT ENTRY
                                                :
LUCAS S. RUDDOCK                                :
                                                :
                                                :   Case No. 11-CA-94
                      Defendant-Appellant       :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Licking County Court of Common Pleas is affirmed. Costs assessed to appellant.




                                              HON. PATRICIA A. DELANEY



                                              HON. WILLIAM B. HOFFMAN



                                              HON. JULIE A. EDWARDS
