State v. Chandler , 2014 Ohio 5215 ( 2014 )

[Cite as State v. Chandler, 2014-Ohio-5215.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 14CA11
:
vs. :
: DECISION AND JUDGMENT
STEVEN CHANDLER, : ENTRY
:
Defendant-Appellant. : Released: 11/18/14
_____________________________________________________________
APPEARANCES:
Christine D. Tailer, Georgetown, Ohio, for Appellant.
Anneka P. Collins, Highland County Prosecutor, and Ross Greer, Highland
County Assistant Prosecutor, Hillsboro, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} This is an appeal from a Highland County Court of Common
Pleas judgment entry sentencing Appellant, Steven Chandler, after a jury
found him guilty of illegal manufacture of drugs, a second degree felony in
violation of R.C. 2925.04(A), and illegal assembly or possession of
chemicals for the manufacture of drugs, a third degree felony in violation of
R.C. 2925.041(A). On appeal, Appellant contends that 1) the trial court
erred in overruling his Crim.R. 29 motion to dismiss when the State failed to
present any evidence in support of the schedule of drug involved in the
Highland App. No. 14CA11 2
offenses with which he was charged; 2) the trial court erred by instructing
the jury that he could be convicted as “either the principal offender or as an
accomplice,” when the indictment did not set forth that he was charged with
complicity; 3) the trial court erred as a matter of law in not merging together
the counts of illegal manufacture and illegal assembly for purposes of
sentencing; and 4) his conviction was against the manifest weight of the
evidence.
{¶2} Because we conclude that Appellant’s convictions were
supported by sufficient evidence and were not against the manifest weight of
the evidence, we find no merit in Appellant’s first and fourth assignments of
error and they are, therefore, overruled. Likewise, because we conclude the
trial court did not err in instructing the jury on complicity and in providing
the required limiting language regarding accomplice testimony, we find no
merit in Appellant’s second assignment of error and it is, therefore, also
overruled. Finally, in light of our conclusion that the offenses of which
Appellant was convicted were performed with different conduct, they are not
allied offenses of similar import. As such, we cannot conclude that the trial
court erred in failing to merge Appellant’s convictions for purposes of
sentencing. Thus, we find no merit in Appellant’s third assignment of error
Highland App. No. 14CA11 3
and it is overruled as well. Having found no merit in the assignments of
error raised by Appellant, his convictions are affirmed.
FACTS
{¶3} On November 1, 2013, the Highland County Sheriff’s
Department executed a search warrant on Appellant’s residence, located at
404 Milburn Street, Greenfield, Ohio, which is located in Highland County.
Upon a search of the residence, officers located several items used in the
production of methamphetamine as well as a “one-pot meth lab” which was
found in the freezer. Items found in the residence included cold packs,
coffee filters, clear tubing attached to the top of a bottle cap, a gas generator,
and a gas mask. A burn barrel was also found outside, which contained an
old “one-pot meth lab.” During the search, it was determined that several
individuals were residing in the house in addition to Appellant and his wife.
These individuals included Kevin Baines, Jamie Whittkugle, Krista Adams
and Dustin Lambert. Items sent to the Ohio Bureau of Criminal
Investigation and Identification (BCI & I) contained 21.5 grams of
methamphetamine. The investigation also revealed that Appellant had
purchased pseudoephedrine, which is a chemical used in the manufacture of
methamphetamine, on October 31, 2013, and other dates prior. Other
Highland App. No. 14CA11 4
residents in the house admitted to having purchased pseudoephedrine also, to
either give to Appellant or Baines, to be used to make meth.
{¶4} On February 4, 2014, the Highland County Grand Jury indicted
Appellant for illegal manufacture of drugs on or about November 1, 2013, a
second degree felony in violation of R.C. 2925.04(A), and illegal assembly
or possession of chemicals for the manufacture of drugs, a third degree
felony in violation of R.C. 2925.041(A). Appellant denied the charges
contained in the indictment and counsel was appointed. A bill of particulars
was filed on February 28, 2014, alleging that Appellant did knowingly
manufacture or engage in a part of the production of methamphetamine on
November 1, 2013. The bill also alleged that Whittkugle and Adams stated
they had bought pseudoephedrine for both Appellant and Baines. The bills
further contained a statement by Appellant himself, which indicated Kevin
Baines cooked methamphetamine in his bedroom in Appellant’s house.
{¶5} The matter proceeded to a jury trial on April 21, 2014. The
State introduced five witnesses, including Stanton Wheasler, an expert in
substance identification and measurement with BCI&I, Sergeant Chris
Bowen and Lieutenant Randy Sanders, who were both involved in the search
of Appellant’s residence, and Krista Adams and Jamie Whittkugle, who
were residents of Appellant’s house. Appellant presented no witnesses or
Highland App. No. 14CA11 5
evidence in his defense. At the close of the State’s case, Appellant moved
for acquittal pursuant to Crim.R. 29(A) based upon the State’s failure to
introduce evidence into the record that methamphetamine was, in fact, a
schedule I or II controlled substance under R.C. 3179.41. The trial court
denied Appellant’s motion and the matter was eventually submitted to the
jury for determination, with objections being made by Appellant with regard
to the trial court’s decision to instruct the jury on complicity.
{¶6} After deliberating for only twenty-nine minutes, the jury found
Appellant guilty of both charges as contained in the indictment. In a
judgment entry dated April 21, 2014, the trial court sentenced Appellant to a
six-year term of imprisonment on the illegal manufacturing conviction, and a
24-month term of imprisonment on the illegal possession or assembly
conviction, to be served consecutively for a total sentence of eight years.
The trial court specifically determined, on the record, that Appellant’s
offenses were not allied offenses of similar import. It is from this entry that
Appellant now brings his timely appeal, assigning the following errors for
our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
CRIMINAL RULE 29 MOTION TO DISMISS WHEN THE STATE
FAILED TO PRESENT ANY EVIDENCE IN SUPPORT OF THE
Highland App. No. 14CA11 6
SCHEDULE OF DRUG INVOLVED IN THE OFFENSES WITH
WHICH APPELLANT WAS CHARGED.
II. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY
THAT APPELLANT COULD BE CONVICTED AS ‘EITHER THE
PRINCIPAL OFFENDER OR AS AN ACCOMPLICE,’ WHEN THE
INDICTMENT DID NOT SET FORTH THAT APPELLANT WAS
CHARGED WITH COMPLICITY.
III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT
MEGING [SIC] TOGETHER THE COUNTS OF ILLEGAL
MANUFACTURE, IN VIOLATION OF R.C. 2925.041(A), AND
ILLEGAL ASSEMPLY, IN VIOLATION OF R.C. 2925.041(A).
IV. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
ASSIGNMENT OF ERROR I
{¶7} In his first assignment of error, Appellant contends that the trial
court erred in overruling his Crim.R. 29 motion, arguing that the State failed
to present any evidence in support of the schedule of drug involved in the
offenses in which Appellant was charged. “A motion for acquittal under
Crim.R. 29(A) is governed by the same standard as the one for determining
whether a verdict is supported by sufficient evidence.” State v. Tenace, 109
Ohio St. 3d 255, 2006-Ohio-2417, 847 N.E.2d 386 (2006), ¶ 37. When
reviewing the sufficiency of the evidence, our inquiry focuses primarily
upon the adequacy of the evidence; that is, whether the evidence, if believed,
reasonably could support a finding of guilt beyond a reasonable doubt. State
v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997) (stating that
Highland App. No. 14CA11 7
“sufficiency is a test of adequacy”); State v. Jenks, 61 Ohio St. 3d 259, 274,
574 N.E.2d 492 (1991). The standard of review is whether, after viewing
the probative evidence and inferences reasonably drawn therefrom in the
light most favorable to the prosecution, any rational trier of fact could have
found all the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, (1979); Jenks at
¶ 273. Furthermore, a reviewing court is not to assess “whether the state's
evidence is to be believed, but whether, if believed, the evidence against a
defendant would support a conviction.” Thompkins at ¶ 390.
{¶8} Thus, when reviewing a sufficiency-of-the-evidence claim, an
appellate court must construe the evidence in a light most favorable to the
prosecution. State v. Hill, 75 Ohio St. 3d 195, 205, 661 N.E.2d 1068 (1996);
State v. Grant, 67 Ohio St. 3d 465, 477, 620 N.E.2d 50 (1993). A reviewing
court will not overturn a conviction on a sufficiency-of-the-evidence claim
unless reasonable minds could not reach the conclusion that the trier of fact
did. State v. Tibbetts, 92 Ohio St. 3d 146, 162, 749 N.E.2d 226 (2001); State
v. Treesh, 90 Ohio St. 3d 460, 484, 739 N.E.2d 749 (2001).
{¶9} On appeal, Appellant challenges the sufficiency of the evidence
presented by the State in support of the offenses for which he was charged
and convicted, illegal manufacture of drugs and illegal assembly or
Highland App. No. 14CA11 8
possession of chemicals for the manufacture of drugs. More specifically,
Appellant’s contention is based upon his argument that the State failed to
present any evidence that methamphetamine was a Schedule I or II drug.
Appellant argues that because the State failed to introduce evidence on this
point, that the trial court erred in denying his Crim. R. 29(A) motion. For
the following reasons, however, we disagree.
{¶10} R.C. 2925.04(A) provides as follows: “No person shall
knowingly cultivate marihuana or knowingly manufacture or otherwise
engage in any part of the production of a controlled substance.” R.C.
2925.041(A) provides as follows:
“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.”
Thus, both statutes reference “controlled substances” and “schedule I or II”
drugs. Appellant contends that because the State did not present evidence to
demonstrate that methamphetamine constitutes a schedule I or II controlled
substance, the trial court should have granted his Crim.R. 29 motion.
Highland App. No. 14CA11 9
{¶11} However, the determination of whether methamphetamine is a
schedule I or II controlled substance under R.C. 3719.41 is a question of law
to be determined by the court rather than a question of fact for the jury.
State v. Rollins, 3rd Dist. Paulding No. 11-05-08, 2006-Ohio-1879, ¶ 30; see
also State v. Reed, 14 Ohio App. 3d 63, 68, 470 N.E.2d 150 (reasoning that
the determination of whether a substance is a controlled substance under
R.C. 3719.41 is one of law to be decided by the court and that the trial court
may take judicial notice of the schedule of a drug.); State v. Baxla II, 4th
Dist. Ross No. 1356, 1988 WL 4412 (finding no error with the fact that no
evidence existed in the record to prove the schedule of the drug involved and
noting that quick reference to the statute reveals the schedule). Based on the
foregoing case law, we find no error in the State’s failure to introduce
evidence regarding the schedule of methamphetamine under R.C. 3719.41
and further find it was proper for the trial court to take judicial notice of that
legal fact and instruct the jury accordingly. As a result we find no merit to
this argument raised under Appellant’s first assignment of error.
{¶12} Further, with regard to the more generalized sufficiency of the
evidence analysis, because we have determined, under Appellant’s fourth
assignment of error, that Appellant’s convictions are not against the manifest
weight of the evidence, we find they are supported by sufficient evidence as
Highland App. No. 14CA11 10
well. “ ‘When an appellate court concludes that the weight of the evidence
supports a defendant's conviction, this conclusion necessarily includes a
finding that sufficient evidence supports the conviction.’ ” State v. Leslie,
4th Dist. Hocking Nos. 10CA17, 10CA18, 2011-Ohio-2727, ¶ 15; quoting
State v. Puckett, 191 Ohio App. 3d 747, 2010-Ohio-6597, 947 N.E.2d 730, ¶
34 (4th Dist.). Thus, a conclusion that a conviction is supported by the
weight of the evidence will also determine the issue of sufficiency.1 Leslie at
¶ 15. Accordingly, Appellant's first assignment of error is without merit and
is, therefore, overruled.
ASSIGNMENT OF ERROR II
{¶13} In his second assignment of error, Appellant contends that the
trial court erred by instructing the jury that he could be convicted as “either
the principal offender or as an accomplice,” when the indictment did not set
forth that Appellant was charged with complicity. Appellant further argues
that not only was it improper for the trial court to instruct the jury on
complicity, the trial court erred by only providing a partial instruction and
leaving out required limiting language regarding accomplice testimony. A
review of the trial transcript reveals that Appellant objected to the trial
1
As we noted in Leslie, the inverse proposition is not always true. For example, a conviction may pass a
sufficiency analysis yet still fail to satisfy a manifest weight of the evidence challenge. State v. Thompkins,
at ¶ 387.
Highland App. No. 14CA11 11
court’s provision of the jury instruction on complicity during trial and thus
has preserved the issue for review.
{¶14} Generally, a trial court should give requested jury instructions
if they are “correct statements of the law applicable to the facts in the case
and reasonable minds might reach the conclusion sought by the instruction.”
Murphy v. Carrollton Mfg. Co., 61 Ohio St. 3d 585, 591, 575 N.E.2d 828
(1991); quoting Markus & Palmer, Trial Handbook for Ohio Lawyers (3
Ed.1991) 860, Section 36:2. Moreover, R.C. 2945.11 requires a trial court to
charge the jury with all the law required to return a verdict. Our review
concerning whether jury instructions correctly state the law is de novo. State
v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 34. However,
reversible error should not be predicated upon one phrase or one sentence in
a jury charge; instead, a reviewing court must consider the jury charge in its
entirety. State v. Porter, 14 Ohio St. 2d 10, 13, 235 N.E.2d 520 (1968).
Moreover, if an instruction correctly states the law, its precise wording and
format are within the trial court's discretion. Brown at ¶ 34. To constitute an
abuse of discretion, the trial court's decision must be unreasonable, arbitrary,
or unconscionable. State v. Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144
(1980).
Highland App. No. 14CA11 12
{¶15} A review of the record indicates that the trial court determined,
based upon the evidence introduced by the State, that a complicity
instruction including aiding and abetting language was warranted. R.C.
2923.03 governs complicity and provides, in pertinent part, as follows:
“(A) No person, acting with the kind of culpability required for
the commission of an offense, shall do any of the following:
***
(2) Aid or abet another in committing the offense[.]”
As set forth above, Appellant was indicted for illegal manufacture of drugs,
a second degree felony in violation of R.C. 2925.04(A), and illegal assembly
or possession of chemicals for the manufacture of drugs, a third degree
felony in violation of R.C. 2925.041(A).
{¶16} “ ‘When the evidence adduced at trial could reasonably be
found to have proven the defendant guilty as an aider and abettor, a jury
instruction by the trial court on that subject is proper.’ ” State v. Dyer, 4th
Dist. Scioto No. 07CA3163, 2008-Ohio-2711, ¶ 19; quoting State v.
Perryman, 49 Ohio St. 2d 14, 358 N.E.2d 1040 (1976), paragraph five of the
syllabus, vacated in part on other grounds by Perryman v. Ohio, 438 U.S.
911, 98 S. Ct. 3136, 57 L. Ed. 2d 1156 (1978). “ ‘To support a conviction for
complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), the
Highland App. No. 14CA11 13
evidence must show that the defendant supported, assisted, encouraged,
cooperated with, advised, or incited the principal in the commission of the
crime, and that the defendant shared the criminal intent of the principal.
Such intent may be inferred from the circumstances surrounding the crime.’
” Dyer at ¶ 19; quoting State v. Johnson, 93 Ohio St. 3d 240, 754 N.E.2d
796, at the syllabus (2001).
{¶17} The indictment charged Appellant with these offenses as a
principal offender. The evidence presented by the State at trial included
testimony from Sergeant Chris Bowen and Lieutenant Randy Sanders.
Sergeant Bowen testified that Appellant, Appellant’s wife Bobbie Chandler,
Jamie Whittkugle, Kevin Baines, Krista Adams and Dustin Lambert all
resided with Appellant in his house, which was the subject of the search. At
the time of the search, when a “one-pot meth lab” was found, all of these
individuals were present in the residence. Above and beyond the “one-pot
meth lab” that was found, multiple items used in the making of
methamphetamine were located in Appellant’s bedroom. Further,
Lieutenant Sanders testified that he interviewed Appellant during the search
and that Appellant himself stated he had purchased pseudoephedrine and
“brought it back” presumably to the house they shared, to give to Kevin
Highland App. No. 14CA11 14
Baines to manufacture meth. He also told Lieutenant Sanders that Kevin
cooked meth in the back bedroom.
{¶18} In light of this testimony, we believe a jury instruction on
complicity was warranted in that it demonstrates, by Appellant’s own
admission, that even if he was not manufacturing meth himself, he was
purchasing and providing pseudoephedrine to Baines to manufacture meth in
Appellant’s own residence with Appellant’s knowledge and consent. He did
this, according the Sanders’ testimony, in exchange for meth to provide to
his wife, Bobbie Chandler. Thus, Appellant was, at a minimum, supporting,
assisting, encouraging and cooperating with Baines in the manufacture of
methamphetamine. We believe such conduct certainly constitutes aiding
and abetting in the manufacture of methamphetamine and thus, we cannot
conclude that the trial court erred in instructing the jury on complicity.
{¶19} Appellant also argues that he was prejudiced by the State’s
failure to include complicity in the indictment and that if he had known the
State intended to pursue a theory of complicity, he would have presented
some evidence in his defense. However, we believe the language contained
in the bill of particulars sufficiently put Appellant on notice that he might be
subject to a complicity instruction. For instance, the bill of particulars states
that Appellant “did knowingly manufacture or engage in a part of the
Highland App. No. 14CA11 15
production of methamphetamine.” Such statement should have alerted
Appellant that the State might pursue a conviction against him as either a
principal offender or as an aider or abettor. Further, under R.C. 2923.03(F),
a defendant “may be convicted of [an] offense upon proof that he was
complicit in its commission, even though the indictment ‘is stated * * * in
terms of the principal offense’ and does not mention complicity.” State v.
Herring, 94 Ohio St. 3d 246, 251, 762 N.E.2d 940 (2002).
{¶20} Appellant’s arguments under this assignment of error,
however, do not end here. Appellant also contends that the instruction
provided to the jury did not contain limiting language regarding the
accomplice testimony of Jamie Whittkugle and Krista Adams. However,
contrary to Appellant’s argument and as noted by the State, the instruction
included the necessary limiting language regarding accomplice testimony.
R.C. 2923.03(D) provides as follows:
“If an alleged accomplice of the defendant testifies against the
defendant in a case in which the defendant is charged with
complicity in the commission of or an attempt to commit an
offense, an attempt to commit an offense, or an offense, the
court, when it charges the jury, shall state substantially the
following:
Highland App. No. 14CA11 16
‘The testimony of an accomplice does not become inadmissible
because of his complicity, moral turpitude, or self-interest, but
the admitted or claimed complicity of a witness may affect his
credibility and make his testimony subject to grave suspicion,
and require that it be weighed with great caution.
It is for you, as jurors, in the light of all the facts presented to
you from the witness stand, to evaluate such testimony and to
determine its quality and worth or its lack of quality and
worth.’ ” (Emphasis added).
{¶21} Here, a review of the record reveals that the trial court advised
the jury as follows:
“Now, you heard testimony from Jamie Whittkugle, and other
persons accused of the same crime charged in Count 2 in this
case, and is therefore said to be an accomplice. An accomplice
is one who knowingly assists or joins another in the
commission of a crime. Whether Ms. Whittkugle was an
accomplice, and the weight to give her testimony, are matters
for you to determine from all of the facts and circumstances in
evidence.
Highland App. No. 14CA11 17
The testimony of an accomplice that is supported by other
evidence does not become inadmissible because of her
complicity, moral turpitude or self-interest, but the admitted or
claimed complicity of a witness may affect her credibility and
make her testimony subject to grave suspicion, and require it be
weighed with great caution.
It is for you, as jurors, in light of all the facts presented to you
from the witness stand, to evaluate such testimony and to
determine its quality, or its lack of quality, and worth.”
{¶22} Thus, a review of the trial transcript reveals that not only did
the trial court substantially comply with the mandate contained in R.C.
2923.03(D), it strictly complied with it. As such, we find no merit in the last
argument raised by Appellant under this assignment of error. Having found
no merit in any of the arguments raised under Appellant’s second
assignment of error, it is overruled.
ASSIGNMENT OF ERROR III
{¶23} In his third assignment of error, Appellant contends that the
trial court erred in not merging his convictions for purposes of sentencing,
claiming that his offenses were allied offenses of similar import. The
Highland App. No. 14CA11 18
application of R.C. 2941.252 (the merger statute) is a legal issue. Thus, an
appellate court will review a trial court's decision de novo without affording
it any deference. See State v. Love, 4th Dist. Hocking No. 13CA16, 2014-
Ohio-1603, ¶ 17; State v. Osman, 4th Dist. Athens No. 13CA22, 2014-Ohio-
294, ¶ 16.
{¶24} In State v. Nguyen, 4th Dist. Athens No. 12CA14, 2013-Ohio-
3170, ¶ 103, we set forth the analysis that applies when determining if
offenses should merge under R.C. 2941.25:
“Through a series of opinions the Supreme Court of Ohio has
advised and re-advised lower courts on the difficult task of
applying Ohio's multiple-count statute to determine which
criminal convictions require merger.” [State v. Delawder, 4th
Dist. Scioto No. 10CA3344, 2012–Ohio–1923, ¶ 39]. In the
plurality decision of State v. Johnson, 128 Ohio St. 3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, the Court expressly
overruled its then current test for merger. Under the new test,
the trial court must first determine ‘whether it is possible to
commit one offense and commit the other with the same
conduct, not whether it is possible to commit one without
2
R.C. 2941.25(A) states “Where the same conduct by defendant can be construed to constitute two or more
allied offenses of similar import, the indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.”
Highland App. No. 14CA11 19
committing the other.’ (Emphasis sic). Johnson at ¶ 48. If the
offenses are so alike that the same conduct can subject the
accused to potential culpability for both, they are ‘of similar
import’ and the court must proceed to the second step. The
court must then determine whether the offenses in fact were
committed by the same conduct, i.e., committed as a single act
with a single animus. Id. at ¶ 49. If so, merger is necessary.
However, if the offenses resulted from separate acts or were
performed with a separate animus, or if the commission of one
offense will never result in the commission of the other, the
offenses will not merge. Id. at ¶ 51.”
{¶25} Here, the evidence presented at trial appears to satisfy the first
part of this new test. It is possible to possess or assemble the chemicals
necessary to manufacture meth, and then to manufacture the drug itself. The
trial court specifically addressed the issue of merger during the sentencing
hearing and stated as follows on the record with respect to the second prong
of the analysis:
“From the evidence that’s been presented, the Court has
determined that these offenses were committed with a separate
animus, and were not a single act with a single state of mind.
Highland App. No. 14CA11 20
The evidence was presented that pseudoephedrine was being
bought routinely; there were a number of items that were there
in the bedroom that could be used, the coffee filters, the other
items. There were one-pots that were in the trash; there were
other bottles that were there to be used; and so that the evidence
is such that it appears it was a regular occurrence at the
Defendant’s home. So, based upon that the Court will
determine that the offenses do not merge for purposes of
2941.25.”
{¶26} Although we employ a different analysis, we agree with the
trial court's determination with regard to the second part of this test and
therefore conclude that these crimes were not committed with the same
conduct and with the same animus. While the trial court seemed to focus on
the fact that the evidence at trial indicated methamphetamine had been
manufactured multiple times on different days, we find more determinative
the fact that Appellant appears to have purchased pseudoephedrine, cold
packs and other material on different days that the actual manufacturing at
issue in this case took place, as well as the fact that additional cold packs,
over and above those needed to manufacture the meth made on November 1,
Highland App. No. 14CA11 21
2013, were found in Appellant’s bedroom during the search. As testified by
Sergeant Bowen during trial:
“[a] cold pack contains ammonia nitrate pellets. Those
ammonia nitrate pellets are mixed in the one-pot with sodium
hydroxide, which is lye. Both of those chemicals react together
and produce ammonia gas, which it takes ammonia gas to break
down your lithium battery.”
This result is consistent with our reasoning recently set forth in State v.
Sluss, 4th Dist. Highland No. 13CA24, 2014-Ohio-4156. In Sluss, we
determined that illegal manufacture of a controlled substance and possession
of chemicals used to manufacture a controlled substance were not allied
offenses of similar import where the evidence indicated that the appellant
had possessed the chemicals for more than a week between the two dates of
the illegal manufacture. Id. at ¶ 22. Part of our reasoning also involved the
fact that the appellant had chemicals “over and above” what he used in the
two “cooks” on the dates in question in that case, thus committing the crimes
with different conduct. Id. at ¶ 31 (Harsha, J. concurring opinion).
{¶27} Because we conclude that the offenses at issue involved
different conduct, they were not allied offenses of similar import and the
trial court did not err in refusing to merge them for purposes of sentencing.
Highland App. No. 14CA11 22
Accordingly, we find no merit to Appellant’s third assignment of error and it
is overruled.
ASSIGNMENT OF ERROR IV
{¶28} In his fourth and final assignment of error, Appellant contends
that his convictions for possession and illegal assembly, and manufacture of
methamphetamine were against the manifest weight of the evidence.
Although Appellant seems to focus his argument under this assignment of
error on his manufacture of methamphetamine conviction only, we will
address both. We begin by considering the proper standard of review.
{¶29} When considering whether a conviction is against the manifest
weight of the evidence, our role is to determine whether the evidence
produced at trial “attains a high degree of probative force and certainty
required of a criminal conviction.” State v. Fry, 4th Dist. Jackson No.
03CA26, 2004-Ohio-5747, ¶ 34; quoting State v. Getsy, 84 Ohio St. 3d 180,
193, 702 N.E.2d 866 (1998). The reviewing court sits, essentially, as a “
‘thirteenth juror’ and [may]disagree [ ]with the fact finder's resolution of the
conflicting testimony.” Fry, supra; quoting State v. Thompkins at 387, 678
N.E.2d 541 (1997), quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S. Ct.
2211 (1982). The reviewing court must dutifully examine the entire record,
weighing the evidence and considering the credibility of witnesses, but
Highland App. No. 14CA11 23
keeping in mind that credibility generally is an issue for the trier of fact to
resolve. Fry, supra, citing State v. Thomas, 70 Ohio St. 2d 79, 80, 434 N.E.2d
1356 (1982); State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus.
{¶30} The reviewing court may reverse the conviction if it appears
that the factfinder, in resolving evidentiary conflicts, “ ‘clearly lost its way
and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.’ ” Thompkins at 387, 678 N.E.2d 541;
quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717
(1st.Dist.1983). On the other hand, we will not reverse a conviction if the
State presented substantial evidence upon which the trier of fact could
reasonably conclude that all essential elements of the offense had been
established beyond a reasonable doubt. Fry, supra; citing State v. Eley, 56
Ohio St. 2d 169, 383 N.E.2d 132 (1978), syllabus.
{¶31} Appellant was convicted of illegal manufacture of a controlled
substance (methamphetamine), which is set forth in R.C. 2925.04(A) as
follows: “[n]o person shall knowingly cultivate marihuana or knowingly
manufacture or otherwise engage in any part of the production of a
controlled substance.” Appellant was also convicted of assembly or
possession of chemicals used to manufacture a controlled substance with
Highland App. No. 14CA11 24
intent to manufacture controlled substance, which is prohibited by R.C.
2925.041. R.C. 2925.0141(A) provides as follows:
“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.”
{¶32} The evidence presented at trial consisted of testimony from
Stanton Wheasler, an expert in substance identification and measurement,
employed with BCI&I. Mr. Wheasler testified that the substance submitted
by the State for testing, which was recovered during the search of
Appellant’s residence, contained 21.5 grams of methamphetamine. Sergeant
Bowen testified that upon searching Appellant’s residence on November 1,
2013, a “one-pot meth lab” was discovered in the freezer. Bowen testified
that additional items involved in the manufacture of methamphetamine such
as cold packs, coffee filters, clear tubing attached to the top of a bottle cap, a
gas generator, and a gas mask were found in Appellant’s bedroom. Other
items, including an “old one-pot” were found in a burn barrel outside of
Appellant’s residence.
Highland App. No. 14CA11 25
{¶33} Lieutenant Sanders testified that Appellant informed him
during the search that he had purchased pseudoephedrine on October 31,
2013, and had “brought it back” to Kevin Baines, who lived in Appellant’s
residence, for meth to be cooked by Baines. According to Sanders,
Appellant stated he had done that in order for his wife to get meth “for free.”
Krista Adams, another resident in the house, testified that she had seen
Appellant making meth, explaining that she had seen him shaking a bottle in
his room. Although Adams conceded on cross-examination that she did not
actually know how to make meth, on re-cross she testified that shaking a
bottle is how she understood meth to be made.
{¶34} Finally, Jamie Whittkugle testified. Whittkugle also resided
with Appellant and was present at the time of the search. Whittkugle
testified that she also had purchased pseudoephedrine and given it to her
boyfriend Kevin Baines, who in turn gave it to Appellant. She testified that
Appellant cooked meth and that she would leave the house when that
happened. She further testified that bottles used for methamphetamine were
burned in a burn barrel outside the house. Although Whittkugle had charges
pending against her as a result of the search, as discussed above, this fact
was made known to the jury and the trial court gave a proper limiting
instruction to the jury regarding accomplice testimony.
Highland App. No. 14CA11 26
{¶35} In light of the foregoing, we find there was substantial
evidence upon which the trier of fact reasonably could conclude that the
essential elements of the above offenses had been established beyond a
reasonable doubt. As such, Appellant’s convictions are not against the
manifest weight of the evidence. Accordingly, we find no merit to
Appellant’s fourth assignment of error and it is overruled.
{¶36} Having found no merit in any of the assignments of error
raised by Appellant, the decision of the trial court is affirmed.
JUDGMENT AFFIRMED.
Highland App. No. 14CA11 27
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Highland County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, P.J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: ___________________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.