| On February 18, 2009, Scott Zimmerman, an Ohio parole officer, received a tip from an informant that 39-year-old Terry Swalley was in possession of methamphetamine in violation of his probation in Conneaut, Ohio.
Zimmerman went to a large home that had been subdivided into multiple apartments where he had been told Swalley was staying. There, in a unit rented by Donald Matthews, he found Swalley, who said he had just moved in and was staying on the couch in the living room of Matthews’s unit.
The room contained a couch, a chest, and a bookshelf. Behind the couch, Zimmerman found a laundry basket containing a gas generator. On the bookshelf, he found a bottle of automobile fuel line antifreeze, a bottle of hydrogen peroxide, and two bottles of iodine. Zimmerman searched a trash container on the front porch of the building and found books of matches, another gas generator, some loose pills, and an envelope with Swalley’s name in the return address.
A search of the garage turned up more fuel line antifreeze, a bottle of muriatic acid, and a jar that appeared to contain the residue of pseudoephedrine.
On March 4, 2009, an Ashtabula County grand jury indicted Swalley on a charge of possession of chemicals used in the production of methamphetamine.
He went to trial in January 2010 in Ashtabula County Court of Common Pleas. Brett Kiser, Chief Probation Officer of Ashtabula County Adult Probation Department, testified that gas generators are commonly used in methamphetamine production. He also told the jury that iodine and hydrogen peroxide could be mixed together to make iodine crystal, a primary ingredient in methamphetamine production.
Kiser admitted that anyone in the building could have deposited the items in the trash container.
Ashtabula County Sheriff’s detective Brian Cumberledge testified that the laundry basket contained a bottle of muriatic acid, a Mountain Dew bottle with tubing protruding from the top, a funnel, electrical tape, a bottle of red flakes that appeared to be phosphorus, a can of brake cleaner, a can of fuel line antifreeze, and aluminum foil. He admitted that although items were sent for testing at the crime lab, no methamphetamine or pseudoephedrine pills were found in the apartment.
Cumberledge said he interviewed Swalley five days after the items were discovered. He testified that Swalley denied manufacturing methamphetamine, but admitted that he had used methamphetamine about a week prior to the search. Cumberledge said Swalley said he used the hydrogen peroxide to clean an infection in his leg. He said that he had just moved into the apartment, and had taken some items out of the apartment to put in the trash. He denied any knowledge of the laundry basket behind the couch.
Matthews testified that he had lived in the one-bedroom unit for about 10 years. He regularly allowed others to stay with him if they needed a place since his “couch is open.” He said he rented the living room to Swalley for $75 a week. Another friend, Don Weston, had moved out “within a day or so” prior to Swalley moving in.
Matthews confirmed that Swalley used the peroxide to treat his infection, and said he believed Swalley used the iodine to clean it. Matthews said the muriatic acid was his and did not belong to Swalley.
Matthews told the jury he did not know to whom the laundry basket belonged. He said that he had some helpers move the furniture around after Weston moved out and before Smalley moved in. He said he never saw Weston or Swalley with the basket.
Donna Strickler, manager of the building, testified that Matthews’s apartment was a “revolving door” of occupants.
Melissa Wing, Swalley’s girlfriend, testified that on February 18, 2009, several hours after the search, she was driving with her daughter when a deputy sheriff pulled her over and searched her car. She said the deputy was looking for Sudafed, which is used to make methamphetamine, or receipts for its purchase. When the search turned up nothing, she said, the deputy told her that “he could put me in jail” and “threatened to call (children’s services) on me.”
Fearing that her daughter would be taken from her, Wing said, she made a statement that she did buy Sudafed for Swalley. However, on the witness stand, Wing recanted that statement, saying it was false and that she only said she made the purchase because she was afraid of losing her daughter.
A nurse working at the Ashtabula County Jail testified that she examined Swalley when he was booked after he was arrested. She said that he had an infection, which was treated with antibiotics, hydrogen peroxide, and iodine.
On January 14, 2010, the jury convicted Swalley of possession of chemicals used to manufacture methamphetamine. He was sentenced to two years in prison.
On April 29, 2011, the Ohio Court of Appeals reversed the conviction and dismissed the case, ruling there was insufficient evidence to sustain a conviction. The court said, “Mr. Swalley was not present at the apartment when the various items known to be associated with the manufacturing of methamphetamine were found. None of the items were tested for fingerprints to connect him to them.”
The court noted that the apartment was available to anyone who needed a place to stay, and that all three areas where items were found—the living room, the trash container, and the garage—were accessible to multiple individuals. The court said that the “mere fact that one is an occupant of premises upon which narcotics are found when such premises are also occupied by others and the narcotics are found in areas accessible to others is, without more—such as forensic evidence linking the items to the defendant—insufficient to establish possession.”
In January 2012, Swalley filed a civil lawsuit seeking compensation under the state of Ohio wrongful conviction act. The lawsuit was dismissed after the prosecution argued that Swalley had failed to show that he was innocent.
Swalley appealed, and in December 2012, the Ohio Court of Appeals reversed the dismissal. On July 6, 2015, the state of Ohio awarded Swalley $31,792.
– Ken Otterbourg
|