State v. Grinstead

• Decision Date: 20 June 2011
• Docket Number: CA2010–07–180.,CA2010–07–165,CA2010–07–164,CA2010–07–166,CA2010–07–163,CA2010–07–167,Nos. CA2010–06–150,s. CA2010–06–150
• Citation: 194 Ohio App.3d 755,958 N.E.2d 177,2011 -Ohio- 3018
• Parties: The STATE of Ohio, Appellee, v. GRINSTEAD et al., Appellants.
• Court: Ohio Court of Appeals

194 Ohio App.3d 755

2011 -Ohio- 3018

958 N.E.2d 177

The STATE of Ohio, Appellee,

v.GRINSTEAD et al., Appellants.

Nos. CA2010–06–150

CA2010–07–163

CA2010–07–164

CA2010–07–165

CA2010–07–166

CA2010–07–167

CA2010–07–180.

Court of Appeals of Ohio, Twelfth District, Butler County.

Decided June 20, 2011.

Michael DeWine, Attorney General, and Karla G. Perrin and Robert W. Cheugh II, Assistant Attorneys General, for appellee.

Sirkin, Kinsley & Nazzarine Co., L.P.A., Scott Ryan Nazzarine, H. Louis Sirkin, and Jennifer M. Kinsley, Cincinnati, for appellants.

RINGLAND, Judge.

[Ohio App.3d 757] {¶ 1} Defendants-appellants, John Grinstead, Larry Lough, and Tri E Technologies, L.L.C., appeal from their convictions in the Butler County Court of Common Pleas. For the reasons outlined below, we affirm.

{¶ 2} On May 20, 2009, the Butler County Grand Jury returned an indictment against Tri E, a defunct company involved in a variety of industrial processes that leased office and warehouse space located at 100 Security Drive, Fairfield, Butler County, Ohio, and its former president, Grinstead, and former CEO, Lough, charging them with, among other things, failing to prepare a hazardous-waste manifest, illegal transportation of hazardous waste, illegal disposal of hazardous waste, illegal storage of hazardous waste, and criminal endangering. The [Ohio App.3d 758] charges stemmed from appellants' alleged illegal transportation and disposal of over 100 tons of cathode-ray tube (“CRT”) glass, a component used in television and computer monitors that contains lead, on property owned by Ray Skinner, generally referred to as the Skinner property, located in West Chester, Butler County, Ohio.

{¶ 3} On December 16, 2009, the Butler County Grand Jury returned an additional indictment against appellants, charging them with, among other things illegal disposal of hazardous waste, illegal storage of hazardous waste, and criminal endangering. These additional charges stemmed from appellants' alleged abandonment of over 9,000 pounds of hazardous materials in their Fairfield facility following their eviction from the property.

{¶ 4} That same day, the Butler County Grand Jury also returned an indictment against Lough, charging him with causing pollution of the waters of the state. This charge stemmed from an allegation claiming that Lough ordered Jimmy C. Bales III, a former employee of Tri E, to dump two large totes containing several hundred gallons of acidic materials left over from Tri E's experiments and industrial processes conducted at their Fairfield facility into a storm drain that ultimately flowed into a local pond.

{¶ 5} On May 14, 2010, following a four-day trial, a jury returned a verdict finding appellants guilty of failing to prepare a hazardous-waste manifest, illegal transportation of hazardous waste, illegal disposal of hazardous waste, illegal storage of hazardous waste, and criminal endangering. The jury also returned a verdict finding Lough guilty of causing pollution of the waters of the state. Appellants subsequently filed a motion for acquittal pursuant to Crim.R. 29(C), which the trial court denied. Appellants now appeal from their convictions, raising two assignments of error for review.

{¶ 6} Assignment of Error No. 1:

{¶ 7} “The trial court erred in upholding the convictions against Grinstead, Lough, and [Tri E] because they were not supported by sufficient evidence and were against the weight of the evidence.”

{¶ 8} In their first assignment of error, appellants argue that the trial court erred by denying their Crim.R. 29(C) motion for acquittal because the state provided insufficient evidence to support their convictions. Appellants also argue that their convictions were against the manifest weight of the evidence.

{¶ 9} Crim.R. 29(C) permits a trial court, upon motion, to set aside a guilty verdict and enter a judgment of acquittal. State v. Willis, Butler App. No. CA2009–10–270, 2010-Ohio-4404, 2010 WL 3620209, ¶ 8. This court reviews a trial court's decision on a Crim.R. 29(C) motion for acquittal using the same standard as that used to review a sufficiency-of-the-evidence claim. [Ohio App.3d 759] State v. Jones, Lucas App. No. L–08–1001, 2009-Ohio-6501, 2009 WL 4727761, ¶ 32; State v. Wright, Hamilton App. No. C–080437, 2009-Ohio-5474, 2009 WL 3323337, ¶ 26.

{¶ 10} Whether the evidence presented is legally sufficient to sustain a verdict is a question of law. State v. Lazier, Warren App. No. CA2009–02–015, 2009-Ohio-5928, 2009 WL 3721008, ¶ 9; State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing the sufficiency of the evidence, “ ‘[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ ” State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, quoting State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. Proof beyond a reasonable doubt is “proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs.” R.C. 2901.05(D).

{¶ 11} On the other hand, a challenge based on manifest weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. State v. Ghee, Madison App. No. CA2008–08–017, 2009-Ohio-2630, 2009 WL 1581139, ¶ 9, citing Thompkins at 387, 678 N.E.2d 541. A court considering whether a conviction is against the manifest weight of the evidence must review the entire record, weighing the evidence and all reasonable inferences, and consider the credibility of the witnesses. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 39; State v. Lester, Butler App. No. CA2003–09–244, 2004-Ohio-2909, 2004 WL 1239179, ¶ 33; State v. James, Brown App. No. CA2003–05–009, 2004-Ohio-1861, 2004 WL 766427, ¶ 9. These issues, however, “are primarily matters for the trier of fact to decide since the trier of fact is in the best position to judge the credibility of the witnesses and the weight to be given the evidence.” State v. Walker, Butler App. No. CA2006–04–085, 2007-Ohio-911, 2007 WL 646257, ¶ 26; State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus. Therefore, the question upon review is 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 reversed. State v. Good, Butler App. No. CA2007–03–082, 2008-Ohio-4502, 2008 WL 4117165, ¶ 25; State v. Blanton, Madison App. No. CA2005–04–016, 2006-Ohio-1785, 2006 WL 902362, ¶ 7.

{¶ 12} As this court has previously stated, although a review of the sufficiency of the evidence and a review of the manifest weight of the evidence are separate and legally distinct concepts, “a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of [Ohio App.3d 760] sufficiency.” State v. Perkins, Fayette App. No. CA2009–10–019, 2010-Ohio-2968, 2010 WL 2573770, ¶ 9; State v. Urbin, 148 Ohio App.3d 293, 2002-Ohio-3410, 772 N.E.2d 1239, ¶ 31. In turn, this court's determination that appellants' convictions were supported by the manifest weight of the evidence will be dispositive of the issue of sufficiency. State v. Rigdon, Warren App. No. CA2006–05–064, 2007-Ohio-2843, 2007 WL 1662245, ¶ 30, citing Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541; see, e.g., State v. Rodriguez, Butler App. No. CA2008–07–162, 2009-Ohio-4460, 2009 WL 2762754, ¶ 62.

May 20, 2009 Indictment

{¶ 13} In regard to their convictions stemming from the May 20, 2009 indictment, appellants initially argue that the collection methods employed to achieve a representative sample, as well as the lab testing procedures performed on those samples, were inadequate and improper. Therefore, according to appellants, because the collection and testing procedures performed were inadequate and improper, the test results indicating that the materials collected from the Skinner property constituted hazardous waste were insufficient and unreliable to sustain their convictions for failing to prepare a hazardous-waste manifest, illegal transportation of hazardous waste, illegal disposal of hazardous waste, and criminal endangering. We disagree.

{¶ 14} Pursuant to Ohio Adm.Code 3745–51–24, a waste, as that term is defined by Ohio Adm.Code 3745–51–02, is toxic, and therefore hazardous, “if, using the toxicity characteristic leaching procedure” generally referred to as the TCLP test, “the extract from a representative sample of the waste” contains, among other contaminants, lead, “at a concentration equal to or greater than the respective value” found in Table 1. According to Table 1, entitled “Maximum Concentrations of Contaminants for the Toxicity Characteristic,” lead has a regulatory toxicity level of 5 mg/l.

{¶ 15} At trial, Jeff Smith, an 18–year veteran with the Ohio Environmental Protection Agency (“OEPA”) currently employed as an environmental specialist with the Hazardous Waste Management Division, testified that he was dispatched to the Skinner property after being contacted by the division of emergency and remedial response to investigate potential hazardous waste. After arriving at the scene, Jeff testified that he located the materials in question, which, according to him, appeared to be “computer monitor glass or CRT glass,” a type of glass known to have leachable lead, a toxic substance capable of causing neurological damage if ingested.

{¶ 16} In furtherance of his investigation, Jeff, who received annual training on sampling methods in accordance with OEPA rules and regulations, testified that he used “glass jars and a bowl and a scoop” to take two samples of the glass material that had...