[Cite as State v. Maust, 2016-Ohio-3171.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103182



                                      STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                               CHRISTOPHER MAUST
                                                   DEFENDANT-APPELLANT




                                    JUDGMENT:
                              AFFIRMED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-592772-A

        BEFORE: Boyle, J., Jones, A.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: May 26, 2016
ATTORNEY FOR APPELLANT

Mary Catherine O’Neill
50 Public Square
Suite 1900
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Jonathan Block
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, Christopher Maust, appeals his convictions for several

drug-related offenses, raising the following four assignments of error:

       I. The trial court erred by admitting improper expert testimony in violation
       of the Ohio Rules of Evidence, the Ohio Rules of Criminal Procedure and
       supporting case law.

       II. The trial court erred in admitting improper physical evidence pursuant to
       Ohio Rules of Evidence and supporting case law.

       III. The guilty verdict cannot be upheld because evidence and testimony
       presented at trial did not establish appellant’s guilty [sic] beyond a
       reasonable doubt.

       IV. Trial court provided ineffective assistance of counsel thereby violating

       appellant’s right to counsel.

       {¶2} Finding no merit to the appeal, we affirm.

       A. Procedural History and Facts

       {¶3} On January 18, 2015, Robert Stuart contacted the Independence Police

Department and filed a police report against his grandson, Maust, who was living at the

residence on Kleber Court, which Robert owned and rented to his son Christopher Stuart

(Maust’s father). Robert reported concerns of drug activity and mistreatment of his

medically ill adult son. Upon discovering that Maust had two active warrants for his

arrest, Independence police officers went to the residence, where they were greeted and

granted entry inside the home by Christopher Stuart, who directed them upstairs to

Maust’s bedroom. After Maust complied with the officers’ order to exit the room, the

officers conducted a protective sweep of Maust’s room, prompting them to immediately
exit the area and request further assistance by the Independence Fire Department.    Based

on their observations, the officers were concerned for their safety, believing that they may

have encountered a clandestine methamphetamine lab.

       {¶4} Independence Fire Department personnel, along with the Chagrin Southeast

Hazardous Material Response Team personnel, responded to the scene.           After it was

determined that the environment was not hazardous, the evidence found in the room was

photographed and collected.     The police also recovered a ziploc baggie containing a

white substance that was later determined to be 4.86 grams of methamphetamine.         The

day following the incident, Robert contacted the police and indicated that a plastic bottle

was discovered in the snow outside of Maust’s bedroom window. The police later

obtained the bottle from the garage of the Kleber Court residence.

       {¶5} Maust was subsequently arrested and indicted on the following five counts:

illegal manufacture or cultivation of drugs, a violation of R.C. 2925.04(A); assembly or

possession of chemicals used to manufacture controlled substance, a violation of R.C.

2925.041(A); trafficking, a violation of R.C. 2925.03(A)(2); drug possession, a violation

of R.C. 2925.11(A); and possessing criminal tools, a violation of R.C. 2923.24(A).

Maust pleaded not guilty to the charges and elected to have a bench trial.

       {¶6} At trial, the state presented six witnesses, including the director of the

Chagrin Southeast Hazardous Material Response Team, Mark Vedder, who is a

hazardous materials specialist in the area of clandestine labs.    Vedder testified that he

responded to a request for assistance at the Kleber Court residence on January 18, 2005.
Vedder explained that, after conducting the necessary testing to determine if the

environment was safe, he assisted the police in identifying what the “materials” were and

photographed the items.      The state offered 49 photographs taken by Vedder, who

identified each photograph and explained whether or how each item was relevant to the

production of methamphetamine.

       {¶7} The state additionally offered two photographs of the same item, marked as

exhibit Nos. 60 and 61, which depicted the plastic bottle recovered by Robert the day

following Maust’s arrest.     Vedder testified that he took these photographs at the

Independence Fire Department on January 19, 2015, after the police had retrieved the

bottle from the Kleber Court residence and transferred it to the fire department.   Vedder

further testified that the container identified in state’s exhibit Nos. 60 and 61 is “very

typical * * * in the production of methamphetamine in what’s called the one-pot method”

as indicated by “the container, the white residue that remains in the container, and the

small amounts of spent lithium that are inside of that container.”

       {¶8} The state also offered testimony and a report concerning purchases of

ephedrine and pseudoepedrine made by Maust using any alias.          Independence Police

Officer Shane Bates testified that, based upon the OARRS report obtained, Maust

purchased a “significant amount” of these substances (89.5 grams) from various

pharmacies in the area during the last two years.

       {¶9} The state presented expert testimony from Jared Prill, a special agent with

the Ohio Bureau of Criminal Investigation and assigned to the Northeast Clandestine
Drug Lab Unit.     Special Agent Prill testified that he reviewed the evidence collected

from the Kleber Court residence, including the photographs taken, and the police reports,

including the report of Maust’s consistent purchases of pseudephredrine every two to

three weeks from March 2013 through December 2014.

       {¶10} Prill explained the various manners of manufacturing methamphetamine and

specifically detailed the “one-pot reaction process.”       Based on the evidence that he

reviewed, Prill opined that Maust had been manufacturing methamphetamine utilizing

this process.   Prill further explained that the presence of the chemical components and

other items necessary for the production of methamphetamine found in Maust’s bedroom

supported his conclusion. Specifically, Prill identified the following items as being

significant: “Coleman fuel; salt; sodium hydroxide, which in this case was lye drain

opener; methamphetamine paraphernalia; a bag of apparent completed methamphetamine;

the ventilation fan inside of the bedroom; the burn patterns in the carpet; mason jars

containing unknown liquids; the APR — the personal respirator device that is

photographed and documented to be in the bedroom; the sulfuric acid; the instant cold

packs; the packaging materials; the funnels; the coffee filters; the rubber tubing; the

plastic baggies; [and] the coffee grinder containing white powder residue.”                Prill

additionally testified that the plastic bottle depicted in the state’s exhibit Nos. 60 and 61 is

“a one-pot reaction vessel used in the manufacturing process.”         Prill further identified

the lithium necessary for the production in methamphetamine by the one-pot reaction
process as being visible in the state’s exhibit Nos. 60 and 61 as “the tiny flakes of gray

metallic material inside the white residue” of the plastic bottle.

       {¶11} Prill further explained that certain items — such as the drain cleaner, coffee

filters, and Coleman fuel — were not stored in their generally accepted location, and that

the close proximity of these items in the “same location” was significant and an indication

of “being used in the methamphetamine process.”         Prill also noted that the surveillance

system in the bedroom was also significant to him because it was being used to monitor

only the bedroom.        Prill explained that “a known documented side effect of

methamphetamine is paranoia” and that “surveillance systems are very commonly

associated and seen at lab sites.”

       {¶12} As for the other evidence presented at trial, we will discuss in greater detail

as necessary in our disposition of the assignments of error.

       {¶13} At the end of the state’s case, Maust moved for an acquittal of all the

charges under Crim.R. 29. The trial court granted Maust’s motion in part with respect to

the trafficking charge and the forfeiture specifications related to the money and cell phone

but denied the motion as to all other charges.       The defense rested and the trial court

ultimately found Maust guilty on the remaining charges. At sentencing, the trial court

imposed a total prison term of three years in prison.    Specifically, the trial court merged

Count 2 (illegal assembly or possession of chemicals used to manufacture a controlled

substance) and Count 5 (possession of criminal tools) into Count 1 (illegal manufacture or

cultivation of drugs) and imposed the mandatory term of three years in prison on Count
1. 1   The trial court further imposed a three-year prison term on Count 4 (drug

possession) to run concurrently.

       B. Expert Testimony or Lay Opinion Testimony

       {¶14} In his first assignment of error, Maust argues that the trial court abused its

discretion in allowing Vedder to offer expert testimony as to the methamphetamine

process, despite not having complied with Crim.R. 16(K) by providing an expert report

prior to trial and not being qualified under Evid.R. 702.

       {¶15} The admission or exclusion of evidence lies in the trial court’s sound

discretion.   State v. Taylor, 8th Dist. Cuyahoga No. 98107, 2012-Ohio-5421, ¶ 22, citing

State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). A trial court will be found to

have abused its discretion when its decision is contrary to law, unreasonable, not

supported by the evidence, or grossly unsound.           See State v. Boles, 187 Ohio App.3d

345, 2010-Ohio-278, 932 N.E.2d 345, ¶ 16-18 (2d Dist.) citing Black’s Law Dictionary

11 (8th Ed.Rev.2004). Further, this abuse of discretion must have materially prejudiced

the defendant. State v. Lowe, 69 Ohio St.3d 527, 532, 634 N.E.2d 616 (1994), citing

State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984).

       {¶16} The state counters that Vedder was not offered as an expert witness; nor did

his testimony constitute expert testimony. Instead, the state maintains that Vedder was a

fact witness, who testified to his observations and actions, such as taking photographs,


           See R.C. 2925.04(C)(3) (when the offender has not previously been convicted under this
       1


statute, “the court shall impose as a mandatory prison term one of the prison terms prescribed for a
felony of the second degree that is not less than three years”).
and simply relayed the relevancy of his actions — all of which he was permitted to do

under Evid.R. 701.   We agree.

       {¶17} Lay witness testimony is defined in Evid.R. 701 as:

      If the witness is not testifying as an expert, the witness’ testimony in the

      form of opinions or inferences is limited to those opinions or inferences

      which are (1) rationally based on the perception of the witness and (2)

      helpful to a clear understanding of the witness’ testimony or the

      determination of a fact in issue.

      {¶18} “Under Evid.R. 701, courts have permitted lay witnesses to express their

opinions in areas in which it would ordinarily be expected that an expert must be qualified

under Evid.R. 702.” State v. Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio-5172,

¶ 74, citing State v. McKee, 91 Ohio St.3d 292, 744 N.E.2d 737 (2001). Indeed, this

court has consistently recognized that the testimony of a state’s witness, who is not

presented as an expert, is properly admitted under Evid.R. 701 when (1) the testimony is

based on the witness’s training or experience, (2) the testimony relates to the witness’s

personal observations with the investigation, and (3) the testimony is helpful to determine

a fact at issue.     See, e.g., State v. Wilkinson, 8th Dist. Cuyahoga No. 100859,

2014-Ohio-5791, ¶ 52-53; Primeau at ¶ 75; State v. Cooper, 8th Dist. Cuyahoga No.

86437, 2006-Ohio-817, ¶ 18.

       {¶19} Appellate courts have similarly determined that “some testimony offered by

officers/detectives is lay person witness testimony even though it is based on the
officer/detective’s specialized knowledge.” State v. Johnson, 7th Dist. Jefferson No.

13JE5, 2014-Ohio-1226, ¶ 57 (Detective’s testimony as to gang activity was permissible

under Evid.R. 701 based on detective’s personal knowledge and experience in the field.);

see also State v. McClain, 6th Dist. Lucas No. L-10-1088, 2012-Ohio-5264, ¶ 13

(Detective’s testimony that quantities of narcotics recovered during the execution of the

search warrant suggested that they were for sale as opposed to personal use was

admissible under Evid.R. 701 as lay person opinion testimony because his testimony was

based on his training and experience.); State v. Williams, 9th Dist. Summit No. 25716,

2011-Ohio-6604, ¶ 11 (Officer’s testimony that the location was a methamphetamine lab

was proper Evid.R. 701 testimony because it was based on personal observation from

items taken from garbage and found in the house.).

      {¶20} Our review of the record reveals that the state properly laid a foundation for

Vedder’s testimony and that his testimony was directly related to the actions that he

personally undertook at the scene.   Specifically, Vedder — apart from his 40 years as a

firefighter with the Chagrin Falls Fire Department and 25 years   as a hazardous materials

specialist — testified as to his training and experience through the Ohio Fire Academy in

methamphetamine labs.     Further, Vedder also has served as an instructor for the Ohio

Fire Academy, teaching specifically about methamphetamine labs and the chemicals that

are involved, the precursor chemicals, and the hazards that are present from those

chemicals.   Therefore, Vedder’s testimony that salt and Coleman lantern fluid are used

in the methamphetamine process as well as his explanation of the one-pot method for
making methamphetamine was based on his own personal knowledge and experience as

established by the state. Additionally, Vedder’s testimony related specifically to his own

actions on the scene and why he undertook such actions, i.e., photographing items that are

used in the methamphetamine process.          Further, Vedder’s testimony was helpful to

determine the significance of the items found in Maust’s bedroom.            Accordingly, we

find no error in the state’s failure to provide an expert report with respect to Vedder; nor

did the trial court abuse its discretion in allowing him to testify on these matters.

       {¶21} The first assignment of error is overruled.

       C. Authentication and Chain of Custody

       {¶22} In his second assignment of error, Maust argues that the trial court erred in

admitting certain exhibits, over defense counsel’s objection, that he contends were never

properly authenticated under Evid.R. 901(A).      We disagree.

       {¶23} Like the first assignment of error, we apply an abuse of discretion in

reviewing the trial court’s decision to admit the exhibits. And here, we find no abuse.

       {¶24} Evid.R. 901(A) provides for the authentication or identification of evidence

prior to its admissibility.   The rule provides, in pertinent part: “The requirement of

authentication or identification as a condition precedent to admissibility is satisfied by

evidence sufficient to support a finding that the matter in question is what its proponent

claims.”    Evid.R. 901(A).      By way of illustration, Evid.R. 901(B) provides that

evidence may be properly authenticated by “testimony of witness with knowledge” that “a

matter is what it is claimed to be.”    Further, the authentication requirement of Evid.R.
901(A) is a low threshold that does not require conclusive proof of authenticity, but only

sufficient foundation evidence for the trier of fact to conclude that the evidence is what its

proponent claims it to be.          State v. Toudle, 8th Dist. Cuyahoga No. 98609,

2013-Ohio-1548, ¶ 21, citing Yasinow v. Yasinow, 8th Dist. Cuyahoga No. 86467,

2006-Ohio-1355, ¶ 81.

       {¶25} Maust first challenges the admission of state’s exhibit Nos. 60 and 61,

which are two separate photographs (taken from different vantage points) depicting the

same two-liter bottle.    Contrary to Maust’s assertion, the state properly authenticated

these exhibits at issue during trial. First, the state offered the testimony of Vedder, who

took the photographs at issue. Further, Robert additionally identified the photographs as

depicting the bottle that he recovered outside of Maust’s bedroom window. Although

Robert was not present when the photograph was taken and therefore unfamiliar with the

surroundings in the photograph, i.e., the garage of the fire department, Robert testified

that the bottle in the photograph “looks like the same bottle” that he discovered. We

find that Vedder’s and Robert’s testimony sufficiently satisfied the requirements of

Evid.R. 901(A).

       {¶26} Maust further contends, however, that the state failed to establish a chain of

custody as to the bottle depicted in the exhibits.

       {¶27} When dealing with chain of custody matters, the state bears the burden of

establishing the proper chain of custody.     In re Lemons, 77 Ohio App.3d 691, 693, 603

N.E.2d 315 (8th Dist.1991); see also State v. Ferrara, 7th Dist. Mahoning No. 14 MA 4,
2015-Ohio-3822, ¶ 14. To meet its burden, the state must only show that it is reasonably

certain that substitutions, alterations, or tampering did not occur. Id. The state does

not have to negate all possibilities of substitution or tampering. Id. Further, breaks in

the chain of custody go to the weight of the evidence, not its admissibility. State v.

Howell, 7th Dist. Mahoning No. 10-MA-148, 2012-Ohio-4349, ¶ 79, citing State v.

Blevins, 36 Ohio App.3d 147, 150, 521 N.E.2d 1105 (10th Dist.1987).

       {¶28} Maust contends that Robert’s testimony fails to account for the handling of

the bottle after Robert placed it in his garage for the police to recover and when the police

actually collected the evidence.    Maust’s argument, therefore, focuses on an alleged

break in the chain of custody prior to the state even obtaining the evidence.        To the

extent that Maust seems to argue that Robert improperly planted the evidence at the scene

for the police to collect, such an argument goes to the weight of the evidence, not its

admissibility.   Our review reveals that the state properly established the chain of custody

of the bottle depicted in exhibit Nos. 60 and 61 through Vedder’s testimony, who detailed

that the police recovered the bottle on January 19 from Robert’s garage and then

transported the bottle to the fire department on that same day where Vedder photographed

it.

       {¶29} Maust also challenges the trial court’s admission of exhibit No. 63, which is

a photograph of a plastic bag containing several items, including cold-medication

packaging and discarded coffee filters, on the grounds that the exhibit was never

authenticated. According to Maust, Robert was unable to identify the exhibit at trial
despite being the person who allegedly collected the items.     But our review of the record

reveals that Robert did in fact identify the exhibit at trial and testified that the photograph

was an accurate and true depiction of the items that he collected while cleaning the house

a few days following the arrest.

       {¶30} Having found that the state properly authenticated these exhibits under

Evid.R. 901, we find no merit to Maust’s claim that the trial court abused its discretion in

admitting these exhibits.

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

       D. Manifest Weight of the Evidence

       {¶32} In his third assignment of error, Maust argues that his convictions are

against the manifest weight of the evidence.    We disagree.

       {¶33} When an appellate court analyzes a conviction under the manifest weight

standard, it must review the entire record, weigh all of the evidence and all of the

reasonable inferences, consider the credibility of the witnesses, and determine whether, in

resolving conflicts in the evidence, the factfinder clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Under a

manifest weight standard, an appellate court sits as a “thirteenth juror” and may disagree

with the factfinder’s resolution of the conflicting testimony.           Id.    Although the

appellate court may act as a thirteenth juror, it should give due deference to the findings

made by the factfinder. Id. at 388.        Only in exceptional cases, where the evidence
“weighs heavily against the conviction,” should an appellate court overturn the trial

court's judgment. Id.

       1. Illegal Manufacture or Cultivation of Drugs

       {¶34} R.C. 2925.04 governs the crime of illegal manufacture of drugs and

provides in relevant part that “[n]o person shall * * * knowingly manufacture or

otherwise engage in any part of the production of a controlled substance.”

       {¶35} Maust first argues that the state’s evidence of his manufacturing of

methamphetamine relied exclusively on the evidence of the one-pot vessel as identified in

state’s exhibits Nos. 60 and 61. According to Maust, these exhibits were improperly

admitted, and therefore, his conviction is unsupported by the weight of the evidence.

But having already found that the trial court properly admitted these exhibits, we reject

this argument.

       {¶36} Alternatively, Maust further contends that, even if these exhibits were

admissible, the trier of fact lost its way in giving the evidence any weight.   Specifically,

Maust argues that given the timing of when Robert discovered the bottle, i.e., the day

following Maust’s arrest, and the fact that the police did not discover it while on the

premises on January 18, 2015, the bottle cannot be reasonably linked to him.        Instead,

Maust maintains that, based on his acrimonious relationship with Robert, the trier of fact

should have assigned the evidence no weight.         We disagree.     The state’s evidence

revealed that Robert discovered the bottle outside of Maust’s window in the snow. The

evidence further revealed that Maust had surveillance cameras set up and likely observed
the police arriving to the residence.   The trier of fact could have reasonably inferred that

Maust discarded the bottle outside the window at that time. But regardless, even without

the admission of state’s exhibit Nos. 60 and 61, Special Agent Prill testified that his

expert opinion as to Maust manufacturing methamphetamine would not have changed.

Prill’s testimony, along with the other overwhelming evidence collected at the scene on

January 18, we cannot say that Maust’s conviction is against the manifest weight of the

evidence.

       2. Illegal Assembly or Possession of Chemicals Used to Manufacture                  a

Controlled Substance

       {¶37} Maust was convicted of illegal assembly or possession of chemicals used to

manufacture a controlled substance under R.C. 2925.041(A), which provides as follows:

       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.

       {¶38} Maust argues that the trier of fact lost its way in finding that he possessed

the necessary intent to support his conviction under R.C. 2925.041(A). While Maust

acknowledges that the state presented evidence of his possession of chemicals used in the

production of methamphetamine, he contends that the trier of fact lost its way in not

finding that these items were being used to “serve household uses.”        But the evidence

overwhelmingly belies this claim.

       {¶39} We reject Maust’s claim that it was reasonable for him to keep all of these

household items in his bedroom because “he did not have the entire home to himself.”
Aside from the unrebutted expert testimony specifically addressing that the proximity of

these items in one room as a significant indication of manufacturing methamphetamine,

the other evidence offered by the state overwhelming demonstrated that Maust had the

requisite intent. Indeed, in addition to the chemicals found in Maust’s bedroom, the

police also recovered equipment used in making methamphetamine, such as the gas mask,

protective coveralls, plastic tubing, filters, lab ware, and an industrial fan.

       3. Drug Possession

       {¶40} Maust was convicted of drug possession in violation of R.C. 2925.11(A),

which provides in relevant part that “[n]o person shall knowingly obtain, possess, or use a

controlled substance.”

       {¶41} Although couched as a manifest weight of the evidence challenge, Maust

argues that the state failed to produce any evidence that methamphetamine was found in

the residence, which goes to the sufficiency of the evidence.         Regardless, under either

standard, Maust’s argument fails. Contrary to Maust’s assertion, Officer Shane Bates

testified that he discovered methamphetamine after moving Maust’s dresser.              Bates

specifically testified that the powdery substance he discovered was identified by both

field tests and lab tests as methamphetamine.      The state offered into evidence the report

that expressly identified the substance as containing 4.86 grams of methamphetamine,

which defense counsel expressly stipulated to before and during trial.       We therefore find

no merit to Maust’s unsupported claim.

       4. Possessing Criminal Tools and Forfeiture Specifications
       {¶42} R.C. 2923.24(A) governs the offense of possessing criminal tools and

provides that “[n]o person shall knowingly obtain, possess, or use a controlled

substance.”

       {¶43} With respect to the possessing criminal tools count and forfeiture

specifications, Maust argues that these charges cannot stand because the other convictions

must be vacated.     Specifically, he argues that the weight of the evidence does not

support any finding of criminal conduct and therefore these charges, which he argues are

dependent on the others, cannot stand.      But having already found that the trier of fact

properly convicted Maust on the other charges, we find no merit to Maust’s claim.

       {¶44} Overall, this is not the exceptional case where the trier of fact lost her way

or the evidence weighs heavily against the conviction.         Based on the state’s expert

testimony, the testimony of the responding police and safety officers, as well as the

physical evidence collected from Maust’s bedroom, we find that Maust’s convictions are

supported by the weight of the evidence. Accordingly, the third assignment of error is

overruled.

       E. Ineffective Assistance of Counsel

       {¶45} In his final assignment of error, Maust argues that he was denied effective

assistance of counsel because his trial counsel (1) failed to voir dire Vedder on his expert

opinion prior to the trial court qualifying Vedder as an expert, (2) failed to object to

irrelevant and prejudicial testimony, and (3) failed to file a motion to suppress or object to

the evidence found in the “unconstitutional search” of Maust’s bedroom.
       {¶46} To establish ineffective assistance of counsel, a defendant must show (1)

deficient performance by counsel, i.e., performance falling below an objective standard of

reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different.          Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the

syllabus.

       {¶47} The burden is on appellant to prove ineffectiveness of counsel.        State v.

Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985). Trial counsel is strongly presumed to

have rendered adequate assistance. Id.; Strickland at 699.       “Trial strategy or tactical

decisions cannot form the basis for a claim of ineffective counsel.” State v. Foster, 8th

Dist. Cuyahoga No. 93391, 2010-Ohio-3186, ¶ 23, citing State v. Clayton, 62 Ohio St.2d

45, 402 N.E.2d 1189 (1980). Additionally, the failure to do a futile act cannot be the

basis for claims of ineffective assistance of counsel, nor could such a failure be

prejudicial. State v. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, ¶ 37; see

also State v. Henderson, 8th Dist. Cuyahoga No. 88185, 2007-Ohio-2372.

       1. Failure to Voir Dire Vedder

       {¶48} Maust first argues that his trial counsel was deficient by failing to request a

voir dire of Vedder’s qualifications when it became apparent that the trial court was

permitting him to offer expert testimony. As discussed above, however, Vedder did not

provide expert testimony. His testimony was properly admissible under Evid.R. 701.
Moreover, even assuming for the sake of Maust’s argument that the trial court “qualified”

Vedder as an expert and his testimony constituted “expert testimony,” Vedder easily

satisfied the requirements of Evid.R. 702 by virtue of his specialized knowledge,

experience, and training related to the production of methamphetamine.         We therefore

cannot say that trial counsel was deficient by failing to request a voir dire of Vedder’s

qualifications.

        2.   Failure to Object

        {¶49} Next, Maust argues that trial counsel failed to object to certain portions of

Robert’s testimony that cast Maust in a negative light. Specifically, Maust complains of

Robert’s testimony that “he had attempted to evict [Maust], was afraid of confrontation

with [Maust], and felt that [Maust] only worked when he felt like it.” Maust contends

these statements were neither relevant under Evid.R. 401 nor admissible under Evid.R.

403. But defense counsel’s failure to object to this testimony goes to trial strategy in this

case.   These statements supported the defense’s theory that Robert had a vendetta

against Maust, which was relevant to the defense’s attempt to discredit the evidence

provided by Robert to the police following the initial search of the room. Accordingly,

we find no basis to conclude that this trial strategy constitutes ineffective assistance of

counsel.

        3. Motion to Suppress

        {¶50} Maust additionally argues that his trial counsel was ineffective by failing to

file a motion to suppress the evidence discovered in his room. Maust argues that the
police lacked his consent to search his room and that neither his father nor grandfather

had the authority to consent to a search of his room.

       {¶51} “‘[F]ailure to file a motion to suppress is not per se ineffective assistance of

counsel.’”    State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), quoting

Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Failure

to file a motion to suppress constitutes ineffective assistance of counsel only if, based

upon the record, the motion would have been granted. State v. Robinson, 108 Ohio

App.3d 428, 433, 670 N.E.2d 1077 (3d Dist.1996).

       {¶52} The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution protect individuals from unreasonable searches and

seizures.    Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “Under

applicable legal standards, the State has the burden of showing the validity of a

warrantless search, because warrantless searches are ‘per se unreasonable under the

Fourth Amendment — subject only to a few specifically established and well delineated

exceptions.’” State v. Hilton, 2d Dist. Champaign No. 08-CA-18, 2009-Ohio-5744, ¶

21-22, citing Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889 (1988).

       {¶53} The record reflects that the police went to the Kleber Court residence with

an arrest warrant for Maust.   There is no dispute that Maust’s father answered the door

and allowed the police officers entry inside the home.      Maust’s father further directed

the officers up to Maust’s bedroom, where they knocked on Maust’s bedroom door,

announced their presence with a warrant for Maust’s arrest, and told him to exit the room.
 Maust complied with the officers’ order and exited the room, leaving his bedroom door

open. Maust does not challenge the lawfulness of the police officers’ initial entry inside

his house, their presence outside his room to execute the arrest warrant, or their protective

sweep of the room following his arrest. Instead, he argues that the police officers had no

authority to subsequently search and “collect evidence” from his bedroom based on the

consent forms signed by his father and grandfather.

       {¶54} But we need not reach the issue of the authority of Maust’s father and

grandfather to consent to a search of Maust’s bedroom or whether the officers reasonably

relied on their apparent authority. Here, a motion to suppress would have been futile on

another ground: the officers’ belief of an active methamphetamine lab.

       {¶55} “Exigent circumstances is an exception to the search warrant requirement,

where probable cause exists to believe that a crime has been committed and the

circumstances suggest a true emergency or danger exists.” State v. Portman, 2d Dist.

Clark No. 2013-CA-68, 2014-Ohio- 4343, ¶ 24; see also State v. Applegate, 68 Ohio

St.3d 348, 350, 626 N.E.2d 942 (1994), syllabus.

       {¶56} R.C. 2933.33(A) states:

              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 methamphetamines 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.

       {¶57} As recognized by the Ninth District
       [C]landestine methamphetamine laboratories pose a per se danger to
       occupants, officers, and the community, and law enforcement officers need
       only a reasonable belief that a structure contains a methamphetamine
       laboratory to justify a search under the emergency-aid exception set forth in
       R.C. 2933.33(A).

State v. Timofeev, 9th Dist. Summit No. 24222, 2009-Ohio-3007, ¶ 25-26. Ohio courts

have consistently applied R.C. 2933.33(A) to permit officers to enter a residence without

a warrant where they possessed probable cause to believe a methamphetamine lab was

located inside or near the residence. State v. Robinson, 4th Dist. Lawrence No. 13CA18,

2015-Ohio-2635, ¶ 51 (providing a detailed list of Ohio courts applying the statute and

finding that exigent circumstances exists to obviate the warrant requirement).

       {¶58} Here, based on the observations of the Independence police officers that

first went to the premises to execute the arrest warrant on Maust, the record contains

evidence of exigent circumstances that would have justified the officers’ search even

without a signed consent form. Officer James Martin testified that he was “stunned”

upon seeing Maust’s room, believing that “we’re possibly in the middle of a

methamphetamine lab.”     Similarly, Officer Shane Bates testified that, after Maust exited

his room, he immediately observed “several things through the open door that alerted”

him to a potential problem, including multiple butane tanks, tin foil, and a white bottle

with lye.   He further noted that upon conducting a protective sweep of the room, he

observed a large container of acetone, an exhaust fan, a burn mark on the carpeting,

surveillance cameras, and an uncovered jar “with a white acidic type of water.”        Based

on the chemicals he observed in the area, Officer Bates testified that he promptly backed
out of the area, “very much worried about hazards.”                Bates further testified that he

detected a “chemical smell” in the room.              Under such circumstances, we find that

exigent circumstances existed to justify the officers’ actions in this case, which included

requesting the immediate help of a hazardous materials team to secure the environment

and collect the evidence.

       {¶59} Thus, based on the evidence in the record, we cannot say that defense

counsel was deficient in failing to file a motion that would have been futile.

       {¶60} Accordingly, having found that Maust was not denied effective assistance of

trial counsel, we overrule his final assignment of error.

       {¶61} We note, however, that the sentencing journal entry in this case erroneously

references marijuana instead of methamphetamine with respect to Count 1 of the

indictment.2 As stated above, Maust was convicted of illegal manufacture or cultivation

of drugs in violation of R.C. 2925.04(A), specifically methamphetamine.

       {¶62} Judgment affirmed and case remanded for the limited purpose of the trial

court to issue a nunc pro tunc journal entry to properly reflect the finding of guilt with

respect to Count 1.

       It is ordered that appellee recover from appellant the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.



           We recognize that the title of R.C. 2925.04 is “[I]llegal manufacture of drugs or cultivation
       2


of marihuana” and therefore the clerical error most likely arose by adopting an abbreviated version of
the title. But because the journal entry states that “the court found the defendant guilty of illegal
manufacture/cultivation of marijuana,” the clerical error must be corrected.
      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.   Case remanded to the trial court

for correction and execution of sentence.

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

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

LARRY A. JONES, SR., A.J., and
EILEEN A. GALLAGHER, J., CONCUR
