[Cite as State v. Burns, 2016-Ohio-7375.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 15CA85
JOANNE BURNS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Court of
                                               Common Pleas, Case No. 2014CR0555 R


JUDGMENT:                                      Affirmed, in part, Reversed, in part, and
                                               Remanded

DATE OF JUDGMENT ENTRY:                         October 14, 2016

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

BAMBI COUCH PAGE                               RANDALL E. FRY
Prosecuting Attorney                           10 West Newlon Place
Richland County, Ohio                          Mansfield, Ohio 44902

By: DANIEL M. ROGERS
Assistant Prosecuting Attorney
Richland County Prosecutor’s Office
38 S. Park Street
Mansfield, Ohio 44902
Richland County, Case No. 15CA85                                                        2

Hoffman, J.


       {¶1}   Defendant-appellant Joanne Burns appeals her conviction and sentence

entered by the Richland County Court of Common Pleas on one count of illegal

manufacture of methamphetamines, in the vicinity of a school zone and/or juvenile; one

count of illegal assembly or possession of chemicals for the manufacture of

methamphetamines, in the vicinity of a school zone and/or a juvenile; and two counts of

child endangering. Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On August 12, 2014, Officer Mandy Lynn Rodriquez of the Mansfield

Metrich Drug Task Force received a call from a pharmacist at the Walgreens in Mansfield,

Ohio. The pharmacist reported suspicious conduct on the part of two women attempting

to purchase a quantity of pseudoephedrine while visiting the Walgreens pharmacy. The

women had trouble producing identification, and one of the women left leaving her

purported identification behind. Each of the women had prior significant history of

purchasing pseudoephedrine.

       {¶3}   Officer Rodriquez and Officer Steven Schivinski of the Mansfield Metrich

Drug Task Force drove to the Walgreens and spoke with the pharmacist, retrieving the

left-behind identification. The officers learned the identification belonged to Appellant,

who had a suspended driver's license but had been issued a state identification card.

       {¶4}   The officers then drove to the address indicated on the identification card

left at the pharmacy, that being 751 Armstrong in Mansfield, Ohio. The premises at the

address appeared to be abandoned. A subsequent inquiry revealed Appellant was
Richland County, Case No. 15CA85                                                             3


presently living at 739 Bowman Street in Mansfield, Ohio. The officers proceeded to that

address.

       {¶5}   Upon arrival there, a boy about twelve years of age answered the door,

stating no adults were present at the home. The officers returned to the residence an hour

later, noticing a vehicle in the driveway. Upon knocking, two adults answered the door,

who were identified as Appellant and her husband, Lyle Burns. The officers obtained

verbal consent to search the residence from the Burns.

       {¶6}   Present in the home were: Appellant, Lyle Burns, co-defendant Tracy Isaac,

and two minor children. The female child approximately five or six years of age belonged

to Appellant and her husband, and a male child, approximately twelve years of age, who

had previously answered the door and belonged to Tracy Isaac, the co-defendant herein.

       {¶7}   Tracy Isaac indicated to the officers she had been staying at the residence

for about two weeks due to marital problems with her husband. At the time the officers

entered the home, Isaac was in an upstairs bedroom.

       {¶8}   Officers conducted a search of the home, including the upstairs area where

the Appellant and her co-defendant had bedrooms, and the basement. In the basement

of the residence, officers found: two bottles of liquid, rubber tubing, coffee filters, Coleman

fuel, ammonia nitrate, peeled lithium batteries, and cold packs. The officers also

conducted a test which indicated the presence of ammonia, necessary in the manufacture

of methamphetamine. The items were submitted to the Mansfield Police Crime Lab. The

liquid found in the one-pot cooking vessel was tested for the presence of

methamphetamine.
Richland County, Case No. 15CA85                                                          4


       {¶9}   The Richland County Grand Jury indicted Appellant as follows: Count One,

manufacturing or engaging in the production of methamphetamine, in the vicinity of a

school zone and/or juvenile, in violation of R.C. 2925.04(A) and (C)(3)(b), a felony of the

first degree; Count Two: assembling or possessing one or more chemicals used to

manufacture methamphetamine, in the vicinity of a school and/or juvenile, in violation of

R.C. 2925.041(A) and (C)(2), a felony of the second degree; and Counts Three and Four,

endangering children, in violation of R.C. 2919.22(B)(6), both felonies of the third degree.

       {¶10} On August 4, 2015, the State filed a motion for joinder of defendants. On

August 25, 2015, Appellant filed a memorandum in opposition. In the memorandum in

opposition to the motion asserting there was insufficient evidence to establish she had

"any knowledge or involvement in the alleged manufacture of the methamphetamine,"

and also alleging the items belonged to someone else with access to the residence.

       {¶11} On September 2, 2015, six days prior to trial, the State provided

supplemental discovery identifying Anthony Tambasco as an expert witness who tested

a substance from the search and provided a lab report on August 13, 2014, identifying

said substance as methamphetamine.

       {¶12} On September 4, 2015, Appellant filed a motion in limine to preclude the

introduction of Tambasco’s report and the making of reference to any substance identified

as methamphetamine.

       {¶13} Discovery materials had been provided by the State to Appellant on

September 30, 2014. Supplemental discovery was provided on October 6, 2014,

December 22, 2014, February 27, 2015 and April 29, 2015. The State had not identified

the expert witness regarding the chemical analysis performed in relation to
Richland County, Case No. 15CA85                                                            5


methamphetamine; nor was the lab report in any of its discovery responses despite the

fact Tambasco’s report had been prepared more than one year prior to the scheduled day

of trial. The State did not allege otherwise.

          {¶14} On the record, and prior to the start of trial, Appellant again motioned the

court to exclude the expert testimony relative to the testing of the State's evidence not

provided to Appellant in discovery until days before the trial, and the lab report identifying

the liquid as methamphetamine.

          {¶15} The trial court overruled the motion as to the expert testimony and the lab

report.

          {¶16} Appellant’s motion in limine further moved for the exclusion of testimony

relative to NPLEX records as prejudicial, non-relevant evidence. Particularly, Appellant

argued evidence from a retailer dating back to June 1, 2013, in the NPLEX database is

highly prejudicial, non-relevant evidence as to the charges herein. The trial court

overruled the motion, finding the evidence relevant to the ultimate issue in the case as to

who was manufacturing and who was purchasing the pseudoephedrine.

          {¶17} The matter proceeded to jury trial. The jury found Appellant guilty of the

charges as stated in the indictment. On September 14, 2015, the trial court sentenced

Appellant to a mandatory ten years imprisonment on Count One; the trial court merged

Appellant's conviction on Count Two with his conviction on Count One. The trial court

sentenced Appellant to two years mandatory time on each Count in Three and Four,

ordering the terms to run concurrently, for a total term of ten years. Appellant was also

sentenced to a five year term of mandatory post-release control, and a sixty month driver's

license suspension.
Richland County, Case No. 15CA85                                                           6


       {¶18} Via Order of September 17, 2015, the trial court imposed costs of the jury

in the amount of $1,400 jointly and severally between Appellant and her codefendant

Tracy Isaac.

       {¶19} Appellant appeals, assigning as error:

       {¶20} “I. THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S

MOTION FOR AQUITTAL [SIC] PURSUANT TO OHIO RULE OF CRIMINAL

PROCEDURE RULE 29A.

       {¶21} “II. THE APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS THE APPELLANT’S TRIAL

COUNSEL FAILED TO RENEW HIS OBJECTION TO THE APPELLEE’S MOTION FOR

JOINDER OF OFFENSES.

       {¶22} “III. THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT’S

MOTION IN LIMINE FILED BY THE APPELLANT’S TRIAL COUNSEL ON SEPTEMBER

4, 2015 CONCERNING THE INTRODUCTION OF EVIDENCE IDENTIFIED AS

METHAMPHETAMINE.

       {¶23} “IV. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING

EVIDENCE THAT WAS PREJUDICIAL TO THE APPELLANT.”

                                                 I.

       {¶24} In the first assignment of error, Appellant maintains the trial court erred in

overruling her motion for acquittal pursuant to Ohio Rule Criminal Rule 29(A).

       {¶25} Criminal Rule 29(A) provides a court must order the entry of a judgment of

acquittal on a charged offense if the evidence is insufficient to sustain a conviction on the

offense. Crim.R. 29(A). However, “a court shall not order an entry of judgment of acquittal
Richland County, Case No. 15CA85                                                          7


if the evidence is such that reasonable minds can reach different conclusions as to

whether each material element of a crime has been proved beyond a reasonable doubt.”

State v. Bridgeman, 55 Ohio St.2d 261 (1978), syllabus. Thus, a motion for acquittal tests

the sufficiency of the evidence. State v. Tatum, 3d Dist. Seneca No. 13–10–18, 2011–

Ohio–3005, ¶ 43, citing State v. Miley, 114 Ohio App.3d 738, 742 (4th Dist.1996).

       {¶26} When an appellate court reviews a record for sufficiency, 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. Monroe, 105 Ohio St.3d 384, 2005–Ohio–2282, ¶

47. Sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

Accordingly, the question of whether the offered evidence is sufficient to sustain a verdict

is a question of law. State v. Perkins, 3d Dist. Hancock No. 5–13–01, 2014–Ohio–752, ¶

30, citing Thompkins at 386.

       {¶27} Appellant was convicted in Count One of illegal manufacture of

methamphetamine, in violation of R.C. 2925.04(A) and (C)(3)(b), within the vicinity of a

school zone and/or a juvenile; in Count Two of illegal possession of chemicals for the

manufacture of methamphetamine, in violation of R.C. 2925.041(A) and (C)(2), in the

vicinity of a school zone and/or juvenile; and in Counts Three and Four of endangering

children, in violation of R.C.2919.22(B)(6).

       {¶28} As to the manufacturing and possession of chemicals necessary to

manufacture methamphetamine (Counts One and Two), Appellant argues the State failed

to establish she had knowledge of the manufacture or possession of the chemicals in the

residence.
Richland County, Case No. 15CA85                                                       8


      {¶29} Illegal manufacture of methamphetamine, in violation of R.C. 2925.04(A)

and (C)(3)(b), reads,



             (A) No person shall knowingly cultivate marihuana or knowingly

      manufacture or otherwise engage in any part of the production of a

      controlled substance.

             ***

             (C)(1) Whoever commits a violation of division (A) of this section that

      involves any drug other than marihuana is guilty of illegal manufacture of

      drugs, and whoever commits a violation of division (A) of this section that

      involves marihuana is guilty of illegal cultivation of marihuana.

             ***



      {¶30} Count Two, in violation of R.C. 2925.041(A) and (C)(2) reads,



             (A) 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.

             ***



      {¶31} Appellant maintains the State failed to prove the culpable mental state of

“knowingly” as to Counts One and Two. Appellant asserts she had no knowledge of the
Richland County, Case No. 15CA85                                                         9


methamphetamine lab or the chemicals necessary to manufacture methamphetamine in

her basement, and the State did not establish her knowledge of the same. We disagree.

       {¶32} Viewing the evidence in a light most favorable to the prosecution, we find a

rational trier of fact could have found the essential elements of the crimes proven beyond

a reasonable doubt. The State provided testimony of Appellant purchasing significant

quantities   of     pseudoephedrine,   including   the   recent   attempted   purchase   of

pseudoephedrine at Walgreens with co-defendant Tracy Isaac on August 12, 2014. In

addition, Appellant purchased an inordinate amount of pseudoephedrine in the months

prior to August 12, 2014.

       {¶33} Testimony at trial established Appellant frequented the basement in her

home. Items consistent with the manufacture of methamphetamine were discovered in

the basement of Appellant’s home. The liquid substance taken from Appellant’s home

was identified as methamphetamine. Metrich Detective Wheeler confiscated items

consistent with a one-pot cook methamphetamine lab. We find the trial court did not err

in denying Appellant’s Criminal Rule 29 motion for acquittal as to Counts One and Two.

       {¶34} Appellant was further charged in Counts Three and Four with endangering

children, in violation of R.C. of 2919.22(B)(6), which reads,



              (B) No person shall do any of the following to a child under eighteen

       years of age or a mentally or physically handicapped child under twenty-

       one years of age:

              ***
Richland County, Case No. 15CA85                                                             10

              (6) Allow the child to be on the same parcel of real property and within

       one hundred feet of, or, in the case of more than one housing unit on the

       same parcel of real property, in the same housing unit and within one

       hundred feet of, any act in violation of section 2925.04 or 2925.041 of the

       Revised Code when the person knows that the act is occurring, whether or

       not any person is prosecuted for or convicted of the violation of section

       2925.04 or 2925.041 of the Revised Code that is the basis of the violation

       of this division.

[Emphasis added.]



       {¶35} We find there was sufficient testimony presented at trial both children

resided at 739 Bowman Street on August 12, 2014, during which time there was evidence

of a one-pot methamphetamine lab discovered by law enforcement. The statute does not

require the state to prove Appellant had authority or the ability to control the child, contrary

to Appellant’s argument with regard to the count regarding her codefendant’s minor child.

       {¶36} However, it is clear the statute requires the State establish Appellant did,

“Allow the child to be on the same parcel of real property and within one hundred feet

of…” the methamphetamine lab. While, the State demonstrated the minor children were

allowed on the same parcel of property, it did not establish the children were within one

hundred feet of the methamphetamine lab.1



1 The State cites State v. Smith, 3rd Dist. No. 6-14-14, 2015-Ohio-2977, as support for the
proposition Ohio Courts have held a juvenile’s presence in the residence, notwithstanding
the juvenile’s not witnessing the manufacturing of methamphetamine or actually entering
the basement where the meth lab existed, satisfies the sufficiency of the evidence for
drug manufacturing or cultivation of marijuana where a 100 foot distance requirement
Richland County, Case No. 15CA85                                                            11


       {¶37} In this case, the statute specifically requires the State to prove the children

were allowed on the parcel of property and within one hundred feet of the

methamphetamine lab. No one testified the children were ever in the basement or the

specific distance between where the children had access to in the house and the meth

lab in the basement. Therefore, the State has not met the burden of proof.

       {¶38} We find there was insufficient evidence to find the elements of child

endangering proven beyond a reasonable doubt, and the trial court erred in denying

Appellant’s Criminal Rule 29 motion for acquittal as to Counts Three and Four.

       {¶39} The first assignment of error is overruled, in part, and sustained, in part.

                                                II.

       {¶40} In the second assignment of error, Appellant maintains she was denied the

effective assistance of counsel because her trial counsel failed to renew her objection to

the State’s motion for joinder of offenses.

       {¶41} On August 4, 2015, the State filed a pretrial Motion for Joinder of

Defendants. Appellant filed a memorandum in opposition on August 25, 2015. The trial

court granted the motion for joinder on August 26, 2015, before trial commenced.

       {¶42} If an objection to joinder is not renewed after the State rests its case or at

the conclusion of evidence, the objection to joinder is waived; forfeiting the issue on

appeal. State of Ohio v. Simpson 9th Dist. 12CA010147, 2013-Ohio-4276, United States



must be met. However, in Smith, the defendant did not move the trial court for a Criminal
Rule 29 motion for acquittal, thus waiving his challenge to the sufficiency of the evidence.
The state in Smith presented testimony the cultivation of marijuana was within 1000 feet
of a school. The State only had to prove the cultivation occurred within the vicinity of a
school or a juvenile, as the defendant was charged in the alternative. We find the State’s
reliance on Smith herein misplaced as the State herein had the burden of proving the
juvenile was within 100 feet of the meth lab.
Richland County, Case No. 15CA85                                                        12

v. Porter 441 F.2d 1204 (1971). Appellant’s trial counsel did not renew her objection to

joinder.

       {¶43} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.

158 (1955).

       {¶44} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

       {¶45} Even if a defendant shows counsel was incompetent, the defendant must

then satisfy the second prong of the Strickland test. Under this “actual prejudice” prong,

the defendant must show “there is a reasonable probability, but for counsel's

unprofessional errors, the result of the proceeding would have been different.” Strickland,

466 U.S. at 694.

       {¶46} When counsel's alleged ineffectiveness involves the failure to pursue a

motion or legal defense, this actual prejudice prong of Strickland breaks down into two

components. First, the defendant must show the motion or defense “is meritorious,” and,

second, the defendant must show there is a reasonable probability the outcome would
Richland County, Case No. 15CA85                                                        13


have been different if the motion had been granted or the defense pursued. See

Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 (1986);

see, also, State v. Santana, 90 Ohio St.3d 513, 739 N.E.2d 798 (2001), citing State v.

Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).

      {¶47} Trial counsel's failure to renew the objection to the motion for joinder is not

per se ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000–

Ohio–0448. Counsel can only be found ineffective for failing to renew the objection, if,

based on the record, the motion would have been granted. State v. Lavelle, 5th Dist. No.

07 CA 130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06–CA–88, 2007–

Ohio–3009, at ¶ 86.

      {¶48} Criminal Rule 8 states, in pertinent part,



             (B) Joinder of Defendants. Two or more defendants may be charged

      in the same indictment, information or complaint if they are alleged to have

      participated in the same act or transaction or in the same series of acts or

      transactions constituting an offense or offenses, or in the same course of

      criminal conduct. Such defendants may be charged in one or more counts

      together or separately, and all of the defendants need not be charged in

      each count.



      {¶49} Our standard of review in reviewing a trial court’s denial of a motion for

joinder is an abuse of discretion. State v. Allen, 5th Dist. No. 2009 CA 13, 2010-Ohio-

4644; State v. Kochen-Sparger, 6th Dist. No. E14-132, 2016-Ohio-2870; State v.
Richland County, Case No. 15CA85                                                           14

Peterson, 8th Dist. No. 100897, 100899, 2015-Ohio-1013. An abuse of discretion is more

than an error in law or judgment. Rather, it implies the court’s attitude is unreasonable,

arbitrary or unconscionable. Berk v. Matthews 53 Ohio St 3d 161, 559 N.E. 2d 1301

(1990); Blakemore v. Blakemore 5 Ohio St.3d 217, 450 N.E. 2d 1140 (1983); Elkins v.

Reed 5th Dist. No. 2013CA00090, 2014-Ohio-1216.

       {¶50} Here, we find the trial court did not abuse its discretion in joining the cases

for trial because the co-defendants were alleged to have participated in the same act or

transaction or same series of acts or transactions.

       {¶51} Furthermore, Appellant has not demonstrated prejudice as a result of the

joinder of the defendants. Appellant’s argument she was prejudiced by any wrong doing

on the part of her codefendant is speculative at best. Neither codefendant made a

statement relative to the other prior to trial or during trial. There was no evidence offered

pertaining to either codefendant more prejudicial to one than to the other. Appellant has

failed to establish the second prong of Strickland, that but for any alleged error on the part

of trial counsel, the outcome of the trial would have been otherwise.

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

                                                 III.

       {¶53} In the third assignment of error, Appellant asserts the trial court erred in

denying her motion in limine to exclude the testimony of Anthony Tambasco as an expert

witness regarding chemical analysis performed on materials confiscated from the

residence during the search the herein, and lab report prepared by Tambasco identifying

the liquid as methamphetamine.
Richland County, Case No. 15CA85                                                        15


       {¶54} Appellant’s motion stems from the State’s failure to provide the lab report

prior to trial, pursuant to Ohio Criminal Rule 16. The rule provides,



                (A) Purpose, Scope and Reciprocity. This rule is to provide all

       parties in a criminal case with the information necessary for a full and fair

       adjudication of the facts, to protect the integrity of the justice system and

       the rights of defendants, and to protect the well-being of witnesses, victims,

       and society at large. All duties and remedies are subject to a standard of

       due diligence, apply to the defense and the prosecution equally, and are

       intended to be reciprocal. Once discovery is initiated by demand of the

       defendant, all parties have a continuing duty to supplement their

       disclosures.

                ***

                (K) Expert Witnesses; Reports. An expert witness for either side

       shall prepare a written report summarizing the expert witness’s testimony,

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

       the expert’s qualifications. The written report and summary of qualifications

       shall be subject to disclosure under this rule no later than twenty-one days

       prior to trial, which period may be modified by the court for good cause

       shown, which does not prejudice any other party. Failure to disclose the

       written report to opposing counsel shall preclude the expert’s testimony at

       trial.

                (L) Regulation of Discovery.
Richland County, Case No. 15CA85                                                          16


               (1) The trial court may make orders regulating discovery not

        inconsistent with this rule. If at any time during the course of the

        proceedings it is brought to the attention of the court that a party has failed

        to comply with this rule or with an order issued pursuant to this rule, the

        court may order such party to permit the discovery or inspection, grant a

        continuance, or prohibit the party from introducing in evidence the material

        not disclosed, or it may make such other order as it deems just under the

        circumstances.

               ***

Ohio Crim. R. 16



        {¶55} Six days prior to the start of trial on September 22, 2015, the State first

provided Appellant’s trial counsel with Supplemental Discovery identifying Anthony

Tambasco as an expert witness and providing the lab report he prepared on August 13,

2014. The lab report identified the substance found at 739 Bowman Street in Mansfield

as methamphetamine. The trial court held a hearing on Appellant’s motion in limine prior

to trial.

        {¶56} Appellant maintains she was prejudiced by the State’s late disclosure as

she was unable to have the substance independently tested or to obtain her own expert

witness to testify as to the substance.

        {¶57} The State responded Appellant was provided with an evidence admission

slip reflecting a clear liquid had been seized from the residence and had been submitted

to the Mansfield Crime Lab. This information had been provided during initial discovery.
Richland County, Case No. 15CA85                                                      17


The State maintains Appellant was therefore on notice and could have independently

tested the substance, and could have obtained her own expert witness.2

      {¶58} In City of Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, the Ohio Supreme

Court held,

              As this court stated in State v. Howard (1978), 56 Ohio St.2d 328,

      333, 10 O.O.3d 448, 451, 383 N.E.2d 912, 915, “[t]he philosophy of the

      Criminal Rules is to remove the element of gamesmanship from a trial.” The

      purpose of discovery rules is to prevent surprise and the secreting of

      evidence favorable to one party. The overall purpose is to produce a fair

      trial. State v. Mitchell (1975), 47 Ohio App.2d 61, 80, 1 O.O.3d 181, 192,

      352 N.E.2d 636, 648.

              ***

              We adopt the rationale upon which the opinions of these courts is

      based and find that a trial court must inquire into the circumstances

      surrounding a violation of Crim.R. 16 prior to imposing sanctions pursuant

      to Crim.R. 16(E)(3). Factors to be considered by the trial court include the

      extent to which the prosecution will be surprised or prejudiced by the

      witness' testimony, the impact of witness preclusion on the evidence at trial

      and the outcome of the case, whether violation of the discovery rules was

      willful or in bad faith, and the effectiveness of less severe sanctions.




2 For Appellee to suggest the defendant was somehow at fault for not pursuing testing
after being put on notice is somewhat disingenuous given the fact the prosecutor was
obviously also on notice of, yet failed to discover, the report for over a year after its
preparation.
Richland County, Case No. 15CA85                                                          18




       {¶59} In State v. Wiles (1991), 59 Ohio St.3d 71, 78–79, 571 N.E.2d 97, the

Supreme Court stated a trial court has discretion under Crim.R. 16(E)(3) to determine the

appropriate response for failure of a party to disclose material subject to a valid discovery

request. See also State v. Parson (1983), 6 Ohio St.3d 442, 6 OBR 485, 453 N.E.2d 689.

To determine whether a trial court has abused its discretion in dealing with Crim.R. 16

violations, we look to whether (1) the violation was willful, (2) foreknowledge would have

benefited the defendant, and (3) the defendant suffered prejudice as a result of the state's

failure to disclose the information. Wiles, supra. See, State v. Jones, 2009-Ohio-2381, ¶

14, 183 Ohio App. 3d 189, 193–94, 916 N.E.2d 828, 831 abrogated by State v. Darmond,

2013-Ohio-966, ¶ 14, 135 Ohio St. 3d 343, 986 N.E.2d 971

       {¶60} The trial court retains discretion to make sanctions other than precluding an

expert’s testimony. State v. Viera, Fifth Dist. No. 11CAA020020, 2011-Ohio-5263. The

trial court is required to impose the least severe sanction consistent with the purpose and

rules of discovery. State v. Opp, 3rd Dist. 13-13-33, 2014-Ohio-1138. State v. Opp, supra,

Opp holds violations of Criminal Rule 16(K) only amount to reversible error if:



              1. The State willfully violated the rule;

              2. Foreknowledge of the information would have benefitted the

       accused in the preparation of his or her defense;

              3. The accused suffered some prejudice as a result. Id.

Opp, supra.
Richland County, Case No. 15CA85                                                            19


       {¶61} We find the State’s late disclosure of their expert witness and the lab report

were not prejudicial to Appellant’s theory of defense. The trial court found the State did

not act willfully in violating Rule 16, and Appellant does not allege the State acted willfully

herein. Though clearly negligent in failing to comply with Criminal Rule 16, such

negligence does not necessarily establish willfulness.

       {¶62} Appellant was aware items consistent with the manufacture of

methamphetamine and chemicals necessary for the manufacture of methamphetamine

were confiscated from her home. Her theory of defense was she had no knowledge of

the methamphetamine lab.3

       {¶63} The trial court did not error in denying Appellant’s motion in limine as

Appellant has not demonstrated the State acted willfully in providing late disclosure of the

discovery, and Appellant has not demonstrated prejudice as a result of the same.

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

                                                 IV.

       {¶65} In the fourth assigned error, Appellant asserts the trial court abused its

discretion in admitting testimony of Appellant’s past purchases of pseudoephedrine.

Appellant argues the evidence is highly prejudicial and irrelevant as the indictment alleges

the crimes were committed on or about August 12, 2014 and the purchases were made

well before the instant charges. We disagree.

       {¶66} Krista McCormick, an employee of Appriss, Inc., the company who

produces the National Precursor Lock Exchange (NPLEX), testified at trial herein.



3On August 25, 2015, Appellant filed a memorandum in opposition to the State’s Motion
for Joinder of Defendants arguing there was insufficient evidence to establish she had
“any knowledge or involvement in the alleged manufacture of methamphetamine.”
Richland County, Case No. 15CA85                                                       20


McCormick explained, in Ohio, pharmacies report all over-the-counter pseudoephedrine

and ephedrine purchases to a database, NPLEX. The State limits the amount of

pseudoephedrine a consumer may purchase in a 30-day time limit.

      {¶67} This Court recently affirmed the admission of NPLEX records as business

records under Ohio Evidence Rule 803(6) in State v. Coleman, Richland App. No. 14-CA-

82, 2015-Ohio-3907 and State v. McDonald, Fairfield No. 15-CA-45, 2016-Ohio-2699.

      {¶68} In Coleman, this Court held,

              All pharmacies must maintain a log book detailing the purchase or

      attempted purchase. All Ohio pharmacies are required by law to report all

      sales    and   attempted    sales      of   pseudoephedrine   to   a   central

      pseudoephedrine clearing house, called NPLEX.           The purpose of the

      NPLEX system is to monitor suspicious purchases of pseudoephedrine

      tablets. All purchase requests are submitted by the pharmacy to NPLEX

      along with the customer's driver's license. All such transactions are

      recorded and the information is available to law enforcement.

              The law affirmatively imposes the duty to record and the contents of

      the record. It can be assumed, therefore, the record was made at or near

      the time of the purchase or attempted purchase.

      {¶69} In United States v. Collins,799 F.3d 554, (6th Cir. 2015), the Sixth Circuit

Court of Appeals found an Appriss, Inc. employee a "qualified witness" for the purpose of

authenticating NPLEX records as business records under Fed. R. Evidence 803(6), which

is identical to Ohio Evidence Rule 803(6).
Richland County, Case No. 15CA85                                                          21


       {¶70} McCormick testified the records pertaining to Appellant indicated the most

recent transaction for July 17, 2014, and the earliest date reflected a transaction on

January 19, 2013. McCormick testified as to Appellant’s purchases from January 19,

2013, through July 17, 2014. McCormick testified as to Appellant’s purchases throughout

the time period, including completed purchases, attempted purchases and blocked

purchases.

       {¶71} O.R.C. 3715.052 requires retailers of pseudoephedrine and ephedrine to

submit information to NPLEX, including the purchaser’s name, address, name and

quantity of the product purchased, date and time of purchase and government

identification provided, including the identification number, and agency issuing the

identification.

       {¶72} The trial court found the testimony of McCormick relative to the NPLEX

information relevant as Appellant was charged with manufacturing methamphetamine

and possession of chemicals used for the manufacture of methamphetamine. The trial

court found the NPLEX information relevant to show Count II obtaining the possession of

chemicals necessary for the manufacture of methamphetamine and also as to

manufacturing. The trial court overruled Appellant’s objection, finding the same did not

arise to an Evidence Rule 404(B) issue.

       {¶73} We do not find the trial court abused its discretion in admitting the testimony,

and Appellant’s fourth assignment of error is overruled. We find Appellant’s argument with

regard to “other bad acts” evidence not well taken. Appellant’s prior history established

she purchased legal quantities of pseudoephedrine or was blocked from purchasing the

same. The trial court overruled Appellant’s objection finding the same did not give rise to
Richland County, Case No. 15CA85                                               22


an Evidence Rule 404(B) issue. We agree. Appellant was charged with possession of

chemicals for manufacture of and the manufacture of methamphetamine. The testimony

of Krista McCormick as to the NPLEX records and Appellant’s history of purchasing

pseudoephedrine was relevant as to the charges.

      {¶74} Appellant’s conviction and sentence in the Richland County Court of

Common Pleas is affirmed, in part, reversed, in part, and remanded for further

proceedings in accordance with this Opinion and the law.

By: Hoffman, J.

Farmer, P.J. and

Wise, J. concur
