[Cite as State v. Gifford, 2015-Ohio-5298.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

MICHAEL GIFFORD 

Defendant-Appellant 

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Appellate Case No. 26660 

Trial Court Case No. 13-CR-3682 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 18th day of December, 2015. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. No. 0020084, Montgomery 

County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. 

Box 972, 301 West Third Street, Dayton, Ohio 45402 

 Attorney for Plaintiff-Appellee 

 

J. DAVID TURNER, Atty. Reg. No. 0017456, Post Office Box 291771, Kettering, Ohio 

45429-1771 

 Attorney for Defendant-Appellant 

. . . . . . . . . . . . . 

 

FAIN, J. 

{¶ 1} Defendant-appellant Michael C. Gifford appeals from his conviction and 

sentence, following a no-contest plea, on one count of Illegal Manufacture of Drugs, in 
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violation of R.C. 2925.04(A), a felony of the second degree, one count of Illegal 

Assembly/Possession of Chemicals for the Manufacture of Drugs, in violation of R.C. 

2925.041(A), a felony of the third degree, and one count of Aggravated Possession of 

Drugs, in violation of R.C. 2925.11(A), a felony of the fifth degree. Gifford’s assigned 

appellate counsel has filed a brief under the authority of Anders v. California, 386 U.S. 

738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he has not found any potential 

assignments of error having arguable merit. Neither have we. Accordingly, the 

judgment of the trial court is Affirmed. 

I. Gifford’s Purchase of Sudafed at a Walgreens Drugstore Leads to his 

Arrest for the Illegal Manufacture of Methamphetamine 

{¶ 2} At about 5:00, one morning in mid-November, 2013, Kettering Police Officer 

Mark Stefano was dispatched to a Walgreens drugstore. The pharmacist there told 

Stefano that a man, later identified as Gifford, had purchased a package of Wal-Phed, 

Walgreens’ brand-name equivalent of Sudafed, and an ice-pack. The pharmacist told 

Stefano that these were items used to make methamphetamine. She asked Stefano to 

“trespass” the man, if Stefano could find him; i.e., to tell him that he was no longer 

welcome at Walgreens,1 and would be subject to prosecution for trespass if he entered 

the store. 

{¶ 3} The pharmacist gave Stefano the license plate number of the car in which 

Gifford was a passenger. Stefano went to the address of the owner of the car, a woman, 

 

1 It is not clear from the record if the man – Gifford – was to be “trespassed” from all 

Walgreens stores, or merely from the store where he bought the Sudafed. 
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made contact with her, and established that the car had been made available to her 

mother-in-law to drive. Later in that conversation, Stefano discovered that the passenger 

in the car was likely Gifford, the mother-in-law’s son, and that Gifford and his mother lived 

at 2904 Culver Avenue, in Dayton. 

{¶ 4} Stefano asked for Dayton police to respond with him to the Culver Avenue 

address, and then proceeded to that address. Stefano testified that his purpose was: 

“Just to locate Mr. Gifford and also just to trespass him. That was my entire purpose of 

being at that address.” 

{¶ 5} Stefano got there about ten minutes before the Dayton police, parked 

“several houses down from the address,” and waited in his cruiser for their arrival. 

Stefano could tell that the garage door was open at 2904 Culver, but could not see 

anything inside. When the Dayton police officers arrived, Stefano talked with them, and 

explained his purpose for making contact with Gifford. 

{¶ 6} Stefano testified as to what happened next: 

A. We just proceeded up the sidewalk, northbound up the sidewalk 

towards the residence, started up the driveway. At that point I observed 

the truck and matched the truck with the license plate number and knew 

that that was the vehicle that had been at Walgreens. 

Q. Did it match the description that was provided to you by the 

Walgreens employee as well? 

A. Correct. 

Q. Okay. 

A. Proceeded up the driveway. The driveway was longer in length. 
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The truck was parked closer to the garage. I could tell the garage was 

open, the door was open, but the truck obscured any view into the garage 

at that point. As we started up the driveway, Mr. Gifford started down the 

driveway towards on [sic] the driver’s side of the truck, started walking. 

He’s like, “What can I help you with?” And, you know, I think we just said, 

“How you doing?” He saw it was us. He then made a direct – he turned 

and started towards the back. It was like an enclosed patio entrance to the 

rear of the house. 

 I said, “Hey, hold on a second. We just want to talk to you.” “Oh, 

just a minute.” He said, “Just a minute. I just want to close this.” He said, 

“I’m not going anywhere. I just want to close this.” He opened the screen 

door and the garage door started to go down. And then he came over and 

made contact with us. 

 Q. And did you go and get him or did he come voluntarily back to 

speak with you? 

 A. He came back out toward us. And we stood – we were right 

there. It was like the enclosed patio on the left. The garage was on our 

right. And the truck was to our back side. And we stood there and talked. 

 Q. And at that point when you said, “Hey,” when you caught his 

attention, was that for the purpose of providing him with the trespass? 

 A. Yes. I just wanted to talk to him about the trespass. 

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 Q. Okay. And tell me about that conversation. 
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 A. I told him why I was there, that he had been to Walgreens. At 

first he was confused. He had made mention of being at Wal-Mart and 

purchased some fuel. I said, “No, I’m talking about Walgreens just a little 

bit ago. You had been there and purchased some Wal-Phed and also the 

ice packs.” And he said, “Oh, yeah, yeah. I was there.” We continued 

on. I said, “Well,” I said, “Those are common items to make 

methamphetamines.” And I said, “We do track the sales at Walgreens and 

at this point the pharmacist just wants you trespassed from the property.” 

And he said he was aware that those items are commonly used to make 

methamphetamines. 

 And then he actually said, “I’m actually making it. I’m going to be 

honest with you guys. I’m actually making it right now in the garage.” At 

that point I think Dayton officer, one of the two asked him to open the 

garage. He said, “do you have a search warrant?” And we were all like, 

“Well, you just told us what’s in there.” And then he voluntarily freely 

opened it and we went from there. 

 Q. Okay. So when he opened the garage did you go inside of it? 

 A. I think eventually all three of us did walk in. I walked in. I 

observed a small pot on the tool bench and inside that pot was like a one 

liter or two liter bottle that was actively boiling, brewing. 

{¶ 7} Gifford also testified at the suppression hearing. His testimony conflicted 

with that of the officers in a number of significant respects. The trial court found the 
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testimony of the two police officers at the suppression hearing to be credible. 

{¶ 8} As a result of the discoveries in the garage, Gifford was arrested. 

II. The Course of Proceedings 

{¶ 9} Gifford was charged by indictment with one count of Illegal Manufacture of 

Drugs, in violation of R.C. 2925.04(A), a felony of the second degree, one count of Illegal 

Assembly/Possession of Chemicals for the Manufacture of Drugs, in violation of R.C. 

2925.041(A), a felony of the third degree, and one count of Aggravated Possession of 

Drugs, in violation of R.C. 2925.11(A), a felony of the fifth degree. Gifford moved to 

suppress the evidence found in the garage, contending that it was obtained as the result 

of an unlawful search and seizure. Following a hearing, Gifford’s motion to suppress 

was overruled. 

{¶ 10} Thereafter, Gifford pled no contest to all three charges, and convictions 

were entered. The parties agreed to a three-year mandatory prison sentence, which the 

trial court imposed for the Illegal Manufacture of Drugs offense. The trial court imposed 

one-year sentences for the other two offenses, to be served concurrently with the threeyear sentence for Illegal Manufacture. Upon Griffin’s motion, the trial court waived the 

mandatory fines for the offenses, finding Gifford to be indigent. The trial court imposed 

a six-month suspension of Gifford’s driver’s license, informed Gifford that he would be 

subject to post-release control for three years after his release from prison, and informed 

him of the consequences if he were to violate the conditions of post-release control. 

{¶ 11} From his conviction and sentence, Gifford appeals. His appointed 

appellate counsel has filed an Anders brief, reflecting that he could find no potential 
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assignments of error having arguable merit. By entry dated September 2, 2015, we 

accorded Gifford the opportunity to file his own, pro se brief within 60 days. He has not 

done so. 

III. We Find No Potential Assignments of Error Having Arguable Merit 

{¶ 12} In his brief, appellate counsel discusses one error that the trial court may 

have committed in its analysis of Gifford’s motion to suppress. Counsel notes that the 

trial court found that Gifford had voluntarily consented to the search of his garage after 

stating that the State had the burden of proving voluntary consent “by a preponderance 

of the evidence.” Counsel cites State v. Black, 2d Dist. Montgomery No. 23524, 2010-

Ohio-2916, and State v. Posey, 40 Ohio St.3d 420, 427, 534 N.E.2d 61 (1988), for the 

proposition that the State must show by clear and positive evidence that consent was 

freely given, being a standard of proof not significantly different from a clear and 

convincing standard of proof. 

{¶ 13} However, appellate counsel goes on to conclude that any error in this regard 

is harmless in view of the trial court’s alternative basis for its conclusion: 

However, assuming arguendo that the [trial] court’s ruling was 

erroneous as it pertained to the standard of evidence to be applied to 

determine voluntary consent, the court made an alternate ruling in support 

of its decision overruling defendant’s motion to suppress. The [trial] court 

determined that “the police had grounds to search the garage based on 

Gifford’s purchase of the meth lab ingredients and his [volunteered] 

statement that he was ‘making it now.’ ” The [trial] court ruled that “[t]he 

risk of explosion as testified by the police officers constitutes exigent 
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circumstances as an exception to the search warrant requirement,” citing 

State v. * * * Timofeev, [9th Dist. Summit No. 24222,] 2009-Ohio-3007 * * * 

and R.C. 2933.33 in support of this ruling. 

{¶ 14} Counsel went on to agree with this part of the trial court’s analysis. So do 

we. R.C. 2933.33(A) provides as follows: 

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 methamphetamine 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. 

{¶ 15} To the trial court’s analysis we would only add that at least one of the officers 

testified to the risk to the public posed by toxic gasses resulting from the illegal 

manufacture of methamphetamines. Not only was the warrantless search of the garage 

reasonable, it would have been irresponsible of the officers not to search the garage after 

Gifford’s volunteered statement that he was making methamphetamine in the garage 

“right now.” 

{¶ 16} Pursuant to our duty under Anders v. California, supra, we have conducted 

an independent review of the record. We have found no potential assignments of error 

having arguable merit. The trial court conducted a proper plea colloquy. It imposed 

concurrent sentences within the ranges authorized by law, and the prison sentence it 
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imposed was the sentence that Gifford and the State agreed to. 

III. Conclusion 

{¶ 17} No potential assignments of error with arguable merit having been found, 

the judgment of the trial court is Affirmed. 

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HALL and WELBAUM, JJ., concur. 

Copies mailed to: 

Mathias H. Heck 

Carley J. Ingram 

J. David Turner 

Michael Gifford 

Hon. Richard Skelton