[Cite as State v. Umstead, 2017-Ohio-8756.]

COURT OF APPEALS 

HOLMES COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsMATTHEW B. UMSTEAD 

 Defendant-Appellant 

JUDGES: 

Hon. Patricia A. Delaney, P. J. 

Hon. William B. Hoffman, J. 

Hon. John W. Wise, J. 

Case No. 16 CA 004 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case Nos. 15CR106 and 16CR006 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: November 30, 2017 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

F. CHRISTOPHER OEHL CHRISTINA I. REIHELD 

ASSISTANT PROSECUTOR Post Office Box 532 

164 East Jackson Street Danville, Ohio 43014 

Millersburg, Ohio 44654 
Holmes County, Case No. 16 CA 004 2

Wise, J. 

{¶1} Subsequent to a reopening by this Court pursuant to App.R. 26(B), 

Defendant–Appellant Matthew B. Umstead further appeals from his conviction in the 

Court of Common Pleas, Holmes County, on several felony counts connected to the 

illegal manufacture of methamphetamine. Appellee is the State of Ohio. A brief summary 

of the relevant facts and procedural history leading to this appeal is as follows. 

{¶2} On November 23, 2015, Sgt. Timothy Stryker, a narcotics detective with the 

Holmes County Sheriff's Office, received information concerning a purchase of 

pseudoephedrine at a pharmacy in Shreve, Ohio. The purchaser was Donnie Spurlock, 

who was known by the detective to periodically stay at appellant's home in Holmesville, 

Ohio. After Sgt. Stryker conducted visual surveillance of appellant's residence, he 

received a second alert that Spurlock had also purchased pseudoephedrine at another 

store, this time at a pharmacy in Wooster, Ohio. At about 7:25 PM, Stryker and a fellow 

officer observed a fire in the back yard of appellant's residence. Stryker went toward the 

back of the residence and approached co-defendant Jason White, who was putting more 

items into the fire. A trash bag next to White was later found to contain used 

pseudoephedrine packs. Stryker also observed an odor of chemical coming from the fire 

and was able to see a pseudoephedrine box that had not caught fire yet. 

{¶3} Stryker decided to secure the property to get a search warrant. While he 

was walking on the property, he observed an odor he associated with the manufacturing 

of methamphetamine in the narrow area between the “man cave” (a shed behind the 

house) and the back of the detached garage. Shortly thereafter, back-up officers entered 

the garage. 
Holmes County, Case No. 16 CA 004 3

{¶4} Spurlock in the meantime came out of the “man cave” and was cuffed by 

one of the deputies. Deputies then entered the man cave and discovered an active meth 

lab. The lab was dismantled. A search warrant was obtained for the property at about 

10:25 PM. During execution of the warrant in the home, they found “baggies of a crystallike white powdered” substance in a safe in appellant's bedroom. Tr. at 125. 

{¶5} The powder was later analyzed by BCI and determined to be 

methamphetamine. Also, a gun was subsequently found in appellant’s bedroom. 

{¶6} The deputies took appellant into custody that evening, after White had gone 

into the house to get him. Stryker interviewed appellant on video at the Holmes County 

Jail at approximately 1:00 AM on November 24, 2015. 

{¶7} Appellant was thereafter charged by joint indictments with at least eight 

felony counts stemming from the aforesaid investigatory activity. Following a pre-trial 

renumbering entry by the trial court, the counts were set forth as follows: 

{¶8} Count 1—Illegal Manufacture of Drugs (R.C. 2925.04(A)); Count 2—Illegal 

Assembly or Possession of Chemicals for the Manufacture of Drugs (R.C. 2925.041(A)); 

Count 3—Aggravated Possession of Drugs (R.C. 2925.11(A)); Count 4—Tampering with 

Evidence (R.C. 2921.12(A)(1)); Count 5—Endangering Children (R.C. 2919.22(B)(6)); 

Count 6—Endangering Children (R.C. 2919.22(B)(6)); Count 7—Having Weapons while 

Under Disability (R.C. 2923.13(A)(2)); and Count 8—Aggravated Possession of Drugs 

(R.C. 2925.11(A)). 

{¶9} The matter proceeded to a jury trial on April 7 and 8, 2016. Appellant was 

ultimately found guilty of all eight counts; however, he was found not guilty of the firearm 
Holmes County, Case No. 16 CA 004 4

specifications as alleged on four of the counts. Via a judgment entry issued on April 11, 

2016, appellant was sentenced inter alia to a prison term of sixteen years and six months. 

{¶10} On May 9, 2016, appellant filed a notice of appeal. In his brief, he raised 

assignments of error as to the sufficiency and manifest weight of the evidence, the trial 

court’s denial of his motion to acquit under Crim.R. 29(A), and the effectiveness of his 

trial counsel. 

{¶11} We affirmed appellant’s convictions via an opinion issued on February 24, 

2017. See State v. Umstead, 5th Dist. Holmes No. 16 CA 004, 2017-Ohio-698, appeal 

not allowed, 149 Ohio St.3d 1465, 2017-Ohio-5699, 77 N.E.3d 989 (2017). 

{¶12} On April 12, 2017, appellant filed a pro se application to reopen his appeal, 

pursuant to App.R. 26(B). The State of Ohio did not file a response. 

{¶13} On July 24, 2017, this Court reopened the appeal, limiting appellant to two 

of his proposed assignments of error. These were (1) the claim that the evidence was 

insufficient to sustain appellant’s conviction for having weapons under disability and (2) 

the claim that trial counsel had been ineffective in failing to challenge the testimony of 

State’s expert Stephanie Laux in light of Crim.R 16(K). 

{¶14} However, appellant’s present counsel, upon her assignment to the case, 

reviewed the matter and thereafter filed a brief pursuant to Anders v. California, infra, 

asserting that she could find no error prejudicial to appellant for argument upon 

reopening. Appellate counsel included therein a conditional motion to withdraw. 

{¶15} Counsel for appellant has thus submitted two potential assigned errors 

under Anders concerning appellant’s aforementioned convictions: 
Holmes County, Case No. 16 CA 004 5

{¶16} “I. APPELLANT WAS PROVIDED INEFFECTIVE ASSISTANCE OF 

APPELLATE COUNSEL DUE TO COUNSEL’S FAILURE TO CHALLENGE THE 

EVIDENCE AS TO WHETHER APPELLANT HAS A PRIOR CONVICTION TO 

SUPPORT HIS WEAPONS UNDER DISABILITY CONVICTION. 

{¶17} “II. APPELLANT WAS PROVIDED INEFFECTIVE ASSISTANCE OF 

APPELLATE COUNSEL DUE TO COUNSEL’S FAILURE TO CHALLENGE TO [SIC] 

EXPERT TESTIMONY OF STEPHANIE LAUX FOR FAILURE TO COMPLY WITH 

CRIM.R. 16(K).” 

{¶18} Appellant was given an opportunity to file a pro se brief raising additional 

potential assignments of error, and he has therein similarly asserted as follows: 

{¶19} “III. APPELLANT WAS PROVIDED INEFFECTIVE ASSISTANCE OF 

APPELLATE COUNSEL DUE TO COUNSEL’S FAILURE TO CHALLENGE THE 

EVIDENCE AS TO WHETHER APPELLANT HAS A PRIOR CONVICTION TO 

SUPPORT HIS WEAPONS UNDER DISABILITY CONVICTION. 

{¶20} “IV. APPELLANT WAS PROVIDED INEFFECTIVE ASSISTANCE OF 

APPELLATE COUNSEL DUE TO COUNSEL’S FAILURE TO CHALLENGE THE 

EXPERT TESTIMONY OF STEPHANIE LAUX FOR FAILURE TO COMPLY WITH 

CRIM.R. 16(K).” 

{¶21} App.R. 26(B)(7) states in part that if an application to reopen is granted, “the 

case shall proceed as on an initial appeal in accordance with these rules except that the 

court may limit its review to those assignments of error and arguments not previously 

considered. ***.” As noted in our recitation of facts, present appellate counsel has 

presented us with an Anders brief following our reopening of the appeal. In Anders v. 
Holmes County, Case No. 16 CA 004 6

California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, the United States 

Supreme Court established the following five criteria: (1) A showing that appellant's 

counsel thoroughly reviewed the transcript and record in the case before determining the 

appeal to be frivolous; (2) a showing that a motion to withdraw has been filed by 

appellant's counsel; (3) the existence of a brief filed by appellant's counsel raising any 

potential assignments of error; (4) a showing that appellant's counsel provided to the 

appellant a copy of said brief; and (5) a showing that appellant's counsel provided 

appellant adequate opportunity to file a pro se brief raising any additional assignments of 

error appellant believes the appellate court should address. See State v. Jennings, 5th 

Dist. Richland No. 98CA24, 1999 WL 547919. 

{¶22} Pursuant to Anders, if, after a conscientious examination of the record, a 

defendant's counsel concludes the case is wholly frivolous, then he or she should so 

advise the court and request permission to withdraw. Id. at 744. Once the defendant's 

counsel satisfies the aforesaid requirements, the appellate court must fully examine the 

proceedings below to determine if any arguably meritorious issues exist. If the appellate 

court also determines that the appeal is wholly frivolous, it may grant counsel's request 

to withdraw and dismiss the appeal without violating constitutional requirements, or may 

proceed to a decision on the merits if state law so requires. Id.

{¶23} We note appellant’s counsel and appellant have both presented their 

potential assigned errors on the basis of claims of ineffective assistance of original 

appellate counsel. See App.R. 26(B)(7). We will herein interpret same as potential claims 

that (1) the trial counsel was ineffective in allowing the allegedly insufficient evidence 

utilized to show appellant has a prior conviction for purposes of the “weapons under 
Holmes County, Case No. 16 CA 004 7

disability” count and that (2) trial counsel was ineffective in allowing the State’s expert 

witness Stephanie Laux to testify, in light of Crim.R. 16(K). 

{¶24} Although this case has unconventionally resulted in an App.R. 26(B) 

reopening followed by Anders proceedings, we initially find appellate counsel in this 

matter has adequately followed the procedures required by Anders v. California, supra. 

I., III. 

{¶25} We first turn to the merits of appellant's counsel’s and appellant's aforesaid 

potential Assignments of Error ultimately going to the sufficiency of the evidence 

demonstrating appellant had committed a felony offense of violence for purposes of the 

charge of having a weapon under disability (R.C. 2923.13(A)(2)). 

{¶26} In reviewing a claim of insufficient 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. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, 

paragraph two of the syllabus. 

{¶27} R.C. 2945.75(B)(1) states as follows: “Whenever in any case it is necessary 

to prove a prior conviction, a certified copy of the entry of judgment in such prior conviction 

together with evidence sufficient to identify the defendant named in the entry as the 

offender in the case at bar, is sufficient to prove such prior conviction.” 

{¶28} In other words, in order to prove the existence of a prior conviction for 

purposes of R.C. 2945.75(B), the State “must present both a certified copy of the prior 

judgment and evidence that the defendant named in the prior judgment is the defendant 
Holmes County, Case No. 16 CA 004 8

in the case at bar.” State v. Lumpkin, 10th Dist. Franklin No. 05AP–656, 2006-Ohio-1657, 

¶ 11. 

{¶29} During the testimony of Sgt. Stryker at appellant’s trial, the State presented 

him on the stand with a State’s exhibit he identified as a “certified copy through the Wayne 

County Common Pleas Court of a felony domestic violence charge for Matthew B. 

Umstead.” Tr. at 140. Stryker also read the case number, 99CR0255, confirmed it was 

“signed and under seal,” and responded in the affirmative that it reflected appellant had 

been “convicted of a felony Domestic Violence in that case.” Id. Defense counsel did not 

cross-examine Stryker on this issue. The certified documents were later entered as 

Exhibit 29 without objection. Tr. at 241-242. 

{¶30} Appellant, in his pro se brief, posits that the State relied upon identical 

names alone as a means of proving the prior conviction, in violation of the rule of Lumpkin. 

However, “[a]s trial courts often note, proof beyond a reasonable doubt does not mean 

proof beyond any doubt.” State v. Burgess, 11th Dist. No. 2002-L-019, 2004-Ohio-3338, 

¶ 37. We are guided on this issue by our decision in State v. Marshall, 5th Dist. 

Tuscarawas No. 2012 AP 11 0065, 2013-Ohio-2978. Similar to what occurred in the case 

sub judice, in Marshall the State utilized a police officer to testify at trial as to certified 

judgment entries demonstrating prior DUI convictions against the defendant, who likewise 

did not object to the testimony. We rejected the defendant’s claim that there was 

insufficient evidence proving the prior convictions were actually against him, not someone 

else. In so ruling, we additionally referenced the language of R.C. 2945.75(B)(3) and 

recognized that the defendant “had the burden of proving the defect in the evidence by a 

preponderance of the evidence.” Id. at ¶ 77. 
Holmes County, Case No. 16 CA 004 9

{¶31} Accordingly, the proposed Assignments of Error as to the sufficiency of the 

evidence of appellant’s prior conviction are overruled. 

II., IV. 

{¶32} We next turn to the merits of appellant's counsel’s and appellant's aforesaid 

potential Assignments of Error claiming that trial counsel had been ineffective in failing to 

challenge the testimony of State’s forensic chemistry expert Stephanie Laux in light of 

Crim.R 16(K). 

{¶33} Crim.R. 16(K) states as follows: “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.” 

{¶34} A review of the trial court file in the case sub judice reveals a supplemental 

discovery response by the State under case number 15CR106, filed January 12, 2016, 

stating that a BCI expert witness report and laboratory report had been delivered to 

defense counsel via an independent web portal. 

{¶35} Despite this, in appellant’s application to re-open, he asserted to this Court 

that “the record in this case shows that the State failed to provide defense counsel with a 

written report by Stephanie Laux which would have revealed what she was going to testify 

to at trial ***.” Appellant’s Application for Reopening, April 12, 2017, at 8. 
Holmes County, Case No. 16 CA 004 10

{¶36} Appellant, in his pro se brief, now asserts that “he has not been able to 

locate any proof” that his defense counsel was actually provided with Laux’s report on 

January 12, 2016. Brief of Appellant at 3. 

{¶37} In determining a claim of ineffective assistance of trial counsel, our review 

is limited to the record before us. See State v. Prophet, 10th Dist. Franklin No. 14AP–

875, 2015-Ohio-4997, ¶ 32. Having had the opportunity to more closely review the 

discovery aspects of the present case, we find no merit in the proposed assignments of 

error that counsel had been ineffective in failing to challenge Laux’s expert testimony on 

the basis of the Crim.R 16(K) requirements. 

Conclusion 

{¶38} Accordingly, all of the above proposed Assignments of Error are overruled, 

and, after independently reviewing the record, we agree with counsel's conclusion that 

no arguably meritorious claims presently exist upon which to base further direct appeal. 

 
Holmes County, Case No. 16 CA 004 11

{¶39} Therefore, despite our prior decision to allow re-opening, we find the 

present appeal to be wholly frivolous under Anders, grant counsel's request to withdraw, 

and again affirm the judgment of the trial court. 

{¶40} For the reasons stated in the foregoing opinion, the judgment of the Court 

of Common Pleas, Holmes County, Ohio, is hereby affirmed. 

By: Wise, J. 

Delaney, P. J., and 

Hoffman, J., concur. 

JWW/d 1106