State v. Colley ( 2017 )


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  • [Cite as State v. Colley, 
    2017-Ohio-4080
    .]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    SCIOTO COUNTY
    STATE OF OHIO,                 :
    :    Case No. 16CA3740
    Plaintiff-Appellee,       :
    :
    vs.                       :    DECISION AND JUDGMENT
    :    ENTRY
    ROBERT C. COLLEY,              :
    :
    Defendant-Appellant.       :    Released: 05/26/17
    _____________________________________________________________
    APPEARANCES:
    John A. Gambill, Portsmouth, Ohio, for Appellant.
    Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto
    County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
    _____________________________________________________________
    McFarland, J.
    {¶1} Robert C. Colley appeals his conviction in the Scioto County
    Court of Common Pleas after a jury found him guilty of one count of illegal
    assembly or possession of chemicals for the manufacture of drugs, a third-
    degree felony. On appeal, Colley contends: (1) the trial court erred in
    denying his motion for a directed verdict on the ground of improper venue;
    (2) the evidence was insufficient as a matter of law or, in the alternative, his
    conviction was against the manifest weight of the evidence, when the State
    presented no evidence of “intent to manufacture” methamphetamine; and (3)
    Scioto App. No. 16CA3740                                                                                        2
    the trial court erred in permitting evidence of third parties’ purchase of
    pseudoephedrine, unrelated to his case. Upon review, we find no merit to
    Appellant’s arguments. As such the trial court did not err. Accordingly, we
    overrule Appellant’s three assignments of error and affirm the judgment of
    the trial court.
    FACTS
    {¶2} On May 20, 2015, Robert C. Colley was indicted on one count
    of illegal assembly or possession of chemicals for the manufacture of drugs,
    a violation of R.C. 2925.041(A), and a felony of the third degree. The
    indictment occurred after an officer for the Ohio Department of Natural
    Resources (“ODNR”) discovered two discarded bags of trash containing
    three boxes of pseudoephedrine product, an active ingredient used for the
    assembly of methamphetamine, along Big Run Road in the Shawnee State
    Forest. Items in both trash bags belonged to Jeannie Kinzer, Appellant’s co-
    defendant and girlfriend at the time.1 While none of the items were directly
    linked to Appellant, ODNR’s investigation revealed that Appellant had
    purchased pseudoephedrine close in time to purchases made by Kinzer.
    Kinzer’s trial testimony later linked some of the contents in the trash bags to
    Appellant.
    1
    Kinzer testified she has three children. Appellant is the father of her youngest, 11 months old at the time
    of trial. It is unclear if Appellant and Kinzer were still involved in romantic relationship at the time of trial.
    Scioto App. No. 16CA3740                                                        3
    {¶3} Appellant proceeded to a jury trial on February 23, 2016. The
    State’s case began with testimony from ODNR Officer Bryce Morris.
    Officer Morris testified regarding his background and training in recognition
    and awareness of clandestine labs for the production of methamphetamine.
    On October 12, 2014, Officer Morris was patrolling the Brush Creek State
    Forest area in Scioto County, investigating litter dump sites along the road,
    when he discovered two trash bags. This area of Scioto County is not far
    from the Pike County, Ohio, line. Officer Morris testified he was looking
    for items which could be connected to the production of methamphetamine.
    {¶4} Officer Morris searched the trash bags and found the following:
    1) An envelope from the Ohio Department of Job and Family
    Services addressed to “Jeannie Kinzer” at “1926 McDermott
    Rushtown Road”;
    2) An empty package of electrical tape;
    3) A Kroger magazine addressed to “Derrick Tackett” at the
    same address on McDermott-Rushtown Road;
    4) An ice compress with the top right hand corner cut; and
    5) Three boxes of Leader Allergy Relief D-24.
    {¶5} Officer Morris testified pseudoephedrine is an active ingredient
    in the manufacture of methamphetamine and the three boxes of Leader
    Allergy Relief D-24 were sold at Bartley’s Discount Pharmacy in Waverly,
    Scioto App. No. 16CA3740                                                                           4
    located in Pike County, Ohio. The ingredients listed on the boxes include
    pseudoephedrine sulfate.
    {¶6} Officer Morris testified in the “one-pot” method of manufacture,
    electrical tape may be used to seal off a bottle to make it airtight. He also
    explained the product inside an ice compress, ammonium nitrate, is one of
    the ingredients for manufacture. The corner being cut on the compress was
    not the typical use of a compress, because the ammonium should not touch
    one’s skin.
    {¶7} In the second trash bag, Officer Morris found the following:
    1) Multiple empty pill blister packs from the three empty boxes
    of Leader Allergy Relief D-24, from Bartley’s Pharmacy;
    2) A grocery list of various items including sea salt and coffee
    filters;
    3) A capped and empty 20-ounce Mello Yello bottle, containing
    a capped syringe.
    {¶8} Officer Morris testified coffee filters are used to filter liquid and
    leave behind crystallized methamphetamine.
    {¶9} Officer Morris further testified after looking through the items,
    he began researching Jeannie Kinzer and Derrick Tackett’s names and
    addresses in OLEG,2 and another database, NPLEX.3 Officer Morris
    2
    OLEG is the Ohio Law Enforcement Gateway database, overseen by the Ohio Attorney General’s Office.
    3
    NPLEX is the National Precursor Log Exchange, overseen by the federal government. This database
    tracks purchases of products containing pseudoephedrine.
    Scioto App. No. 16CA3740                                                      5
    identified a summary record of Jeannie Kinzer’s pseudoephedrine purchases,
    showing transaction dates and locations. Officer Morris also identified an
    NPLEX record and summary of Appellant’s pseudoephedrine purchases at
    Bartley’s Pharmacy and at a Walmart Pharmacy both in Waverly, Ohio.4
    {¶10} Andy Canterbury, the Asset Production Manager at the
    Waverly Walmart, testified about Walmart’s video surveillance system. He
    testified there are approximately 180 cameras inside the store. The cameras
    record for approximately 93 days. Canterbury is able to view multiple
    cameras at a time, link them together, and watch an individual moving
    throughout the store.
    {¶11} Canterbury testified that on October 19, 2014, he assisted
    Officer Morris in reviewing several days of surveillance video. Canterbury
    identified a CD he burned for Officer Morris, showing Jeannie Kinzer and
    Appellant purchasing pseudoephedrine products. Canterbury also took still
    photographs from the video. Canterbury identified an overshot of a register,
    an electronic journal from the Waverly store, and the still photographs taken
    from the video surveillance.
    {¶12} On October 19, 2014, Officer Morris and another ODNR
    officer, Charles Carlson, went to Walmart with the NPLEX records to
    4
    Waverly is a village in Pike County.
    Scioto App. No. 16CA3740                                                                                    6
    review the Walmart footage. They had enlarged BMV photos of Appellant
    and Jeanie Kinzer. On October 3rd, they observed a red Ford Explorer
    entering the parking lot and Kinzer entering the store. They were able to
    match the surveillance video with the database records of purchase. Kinzer
    purchased Sudafed. Also on that date, Appellant purchased Leader Allergy
    Relief D-24 at Bartley’s.
    {¶13} The officers also reviewed the pharmacy counter camera and
    then back-tracked to find Appellant and Kinzer’s vehicle in the parking lot.
    Kinzer then met with two other individuals - Appellant and a third subject.
    The group met at the pharmacy counter, then separated. Kinzer left the store
    and pulled a red Ford Explorer near the front of the store. Appellant was
    observed in the video checking out.5 Appellant and the other individual left
    the store and got into Kinzer’s vehicle.
    {¶14} Morris also testified that on August 23rd surveillance footage,
    Kinzer was at the front desk purchasing and they matched her record with
    NPLEX. They also viewed Appellant exiting the store, with Sudafed
    purchases recorded on that date.
    {¶15} As a result of viewing these tapes, Morris attempted to
    interview Kinzer at the address found in the trash bags. They were able to
    5
    The third subject, wearing a white bandana and black jacket, was tracked to the battery section of
    Walmart’s electronics department. Officer Morris testified lithium batteries are also used in the one-pot
    method.
    Scioto App. No. 16CA3740                                                                     7
    locate Derrick Tackett, her brother. The officers were unable to make
    contact with Kinzer. Meanwhile, the Mello Yello bottle with the syringe
    was tested for DNA by the Ohio Bureau of Criminal Identification and
    Investigation (“BCI”). The DNA was matched to Jeannie Kinzer.6 Based
    on the investigation, Officer Morris filed indictments against both Appellant
    and Kinzer.
    {¶16} On cross-examination, Officer Morris testified he has
    investigated 3 methamphetamine cases. He admitted his duties are “spread
    pretty thin.” He also acknowledged:
    1) He was testifying from his report prepared 18 months
    earlier;
    2) The Mello Yello bottle was the only DNA sample sent to
    BCI;
    3) He did not order fingerprinting and did not take a statement
    from Kinzer;
    4) Other entries in the NPLEX summary show Kinzer
    purchasing without Appellant’s presence;
    5) Appellant also purchased Claritin-D within the legal limits
    and on dates he was allowed to purchase;
    6) Officer Morris never reviewed Appellant’s medical history;
    and,
    6
    Kinzer’s DNA was provided from a previous sample retrieved from the Ross County Sheriff’s
    Department.
    Scioto App. No. 16CA3740                                                      8
    7) None of the documents in the trash bags could be directly
    connected to Appellant.
    {¶17} On redirect, Morris reiterated the significance of the NPLEX
    purchase records. Kinzer’s summary demonstrates she made 16 purchases
    of pseudoephedrine products between April 1, 2014 and January 8, 2015.
    Appellant made 12 purchases in 2014. Five times in 2014, Appellant and
    Kinzer purchased on the same date.
    {¶18} The next witness, Thomas Kelley, the Pharmacy Manager at
    Waverly Walmart, testified pseudoephedrine is a stimulant decongestant, an
    over-the-counter product used for relief of cold symptoms. Although it is
    not an allergy medicine, it is sometimes combined with allergy medicine.
    Kelley testified pseudoephedrine is used illegally to reduce it from its
    current form into methamphetamine.
    {¶19} Kelley further testified due to the Control Methamphetamine
    Act, pharmacies must maintain records of pseudoephedrine sales. A person
    purchasing pseudoephedrine has to provide the purchaser’s address and a
    current photo ID, without alteration. Walmart keeps its own database in the
    home office, in the normal course of business, and the records are shared
    with NPLEX.
    {¶20} Kelley testified he saw many individuals from Scioto County,
    Ohio, with no patient relationship to the Walmart Pharmacy, attempting to
    Scioto App. No. 16CA3740                                                       9
    purchase pseudoephedrine. Specifically, he testified on a typical day, 30-40
    people request pseudoephedrine and half, if not more, are residents from
    Scioto County. He has visually verified this fact by viewing driver’s
    licenses.
    {¶21} Kelley identified purchase records for Jeannie Kinzer and for
    Appellant. Kinzer’s purchase record showed Allergy and Congestion Relief
    purchased on August 23, 2014. Both items can be broken down to make
    methamphetamine. On October 3, 2014, Kinzer purchased Decongestant, 12
    hour Max. Appellant’s purchase record reflected purchases of drugs that can
    be converted to methamphetamine.
    {¶22} On cross examination, Kelley explained that decongestant is
    used to relieve nasal pressure. Under Ohio law, a person can buy 3.6 grams
    per day. Kelley acknowledged none of his records showed Appellant
    making illegal purchases.
    {¶23} Vanessa Rigsby, a manager at Bartley’s Pharmacy, testified
    she trains other employees on pseudoephedrine sales and is aware of illegal
    uses. Rigsby also explained the procedure for pseudoephedrine sales. When
    a customer requests a product, Bartley’s computer scans the driver’s license
    and the product. Once that is done, the computer will advise if the sale can
    be completed, or if the purchaser has bought the limit anywhere else. The
    Scioto App. No. 16CA3740                                                      10
    electronic records are stored in Bartley’s computer, kept in the normal
    course of business, and shared with NPLEX. Rigsby identified an October
    3, 2014 record of purchase of Leader Allergy Relief D-24 from Bartley’s,
    sold to Appellant.
    {¶24} Officer Charles Carlson, an investigator for ODNR, testified
    that ODNR had recently been finding methamphetamine dumps along the
    roadways. He assisted in the cleanup of these dumps. Officer Carlson also
    testified as to the ingredients used and the process for breaking down
    pseudoephedrine and making it into methamphetamine.
    {¶25} On October 12, 2014, Officer Morris contacted Officer Carlson
    and showed him pictures of the trash collected. The totality of the
    ingredients discarded led Officer Carlson to believe a one-pot method had
    been discarded. Since there were no fingerprints, they tested DNA on the
    bottle. They also had receipts and tracked the purchasers through NPLEX.
    Carlson identified the State’s exhibits.
    {¶26} On cross-examination, Officer Carlson testified he is one of six
    investigators for 25 counties. He testified he and Officer Morris linked
    Appellant to the bags through the video surveillance showing his purchases.
    {¶27} The State’s last witness was Jeannie Kinzer. She testified she
    is 36 years old, an admitted drug addict for 11 years. She was currently in
    Scioto App. No. 16CA3740                                                                                    11
    treatment. Kinzer also admitted she has a felony conviction for illegal
    manufacturing, for which she received a five-year sentence of probation, and
    two petty theft convictions from other counties. She was subpoenaed and
    did not want to testify against Appellant.
    {¶28} Kinzer met Appellant when they were teenagers. They
    reconnected in 2013. At the time, Appellant was in treatment. They formed
    a relationship after he completed treatment in 2013. Kinzer used
    methamphetamine, for the first time, with Appellant on New Year’s Eve
    2014.7
    {¶29} Kinzer testified the Big Run Road area was a solitary place,
    about three miles from where they lived. She and Appellant went there to be
    alone and to “shoot up” because it was private. Kinzer testified she used
    Suboxone or methamphetamine. Towards the end of 2014, she was using
    Suboxone and methamphetamine, with Appellant, daily. They administered
    it through syringes.
    {¶30} Kinzer testified she would purchase pseudoephedrine and then
    trade it for Suboxone, money, or methamphetamine. She always went to the
    Waverly Walmart. Sometimes Appellant went with her. He was also
    purchasing pseudoephedrine, but she did not see what he did with his boxes.
    7
    The date given is “New Year’s Eve 2014,” however, we consider this may be a scrivener’s error as, in
    light of her other testimony, it would be more logical for the date to actually be “New Year’s Eve 2013.”
    Scioto App. No. 16CA3740                                                        12
    Importantly, Kinzer testified Appellant “always” drove her vehicle because
    he did not like the way she drove.
    {¶31} Kinzer identified a photograph of her vehicle, herself, and
    Appellant on October 3, 2014. She also identified her signature for a
    purchase of a pseudoephedrine product. Kinzer also identified her Job and
    Family Services mail with the McDermott-Rushtown Road address, as well
    as the grocery list in her writing. She testified the sea salt and coffee filters
    on the list had nothing to do with her making methamphetamine. Kinzer
    denied throwing out the trash bags on Big Run. She also denied cutting the
    corner of the ice pack.
    {¶32} Kinzer identified her brother’s name, Derrick Tackett, on the
    Kroger magazine. Kinzer testified her brother always gave her his Kroger
    coupons, but he had nothing to do with the items located in the trash bags.
    He was not living with her at the time.
    {¶33} Kinzer testified Appellant purchased at Bartley’s Pharmacy if
    they could not get pseudoephedrine from Walmart. Kinzer testified during
    the time she was using methamphetamine, she did not know who was
    actually making it. Appellant would take the boxes of pseudoephedrine and
    come back with methamphetamine. He had a lot of contacts and he didn’t
    Scioto App. No. 16CA3740                                                       13
    want her to meet them, for her protection. Specifically, she testified “I do
    not know if he was making it.”
    {¶34} On cross-examination, Kinzer admitted she had worked at a
    nursing home in Hillsboro and was suspended for suspicion of theft of
    narcotics. She testified she had already violated her probation by testing
    positive for methamphetamine. She testified in the past she had observed
    Appellant sleeping and sometimes he had difficulty breathing. Kinzer also
    recalled writing Appellant a letter in which she said she felt pressured to
    testify against him. She testified she did not recall the Mello Yello bottle or
    the other items she was shown by the prosecutor.
    {¶35} At this point, the State moved to admit all but one of its
    exhibits, and the court granted this motion. Defense counsel moved for a
    directed verdict on the issue of venue, arguing that none of the actions
    alleged to be in violation of the law occurred in Scioto County. The motion
    for directed verdict was overruled. Then the State rested. Appellant did not
    present evidence.
    {¶36} The jury found Appellant guilty. He was subsequently
    sentenced to a maximum prison term of thirty-six months. This timely
    appeal followed.
    ASSIGNMENTS OF ERROR
    Scioto App. No. 16CA3740                                                     14
    “I. THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION FOR A DIRECTED VERDICT AT
    THE CLOSE OF THE STATE’S CASE ON THE GROUND
    OF IMPROPER VENUE.
    II. THE EVIDENCE WAS INSUFFICIENT AS A MATTER
    OF LAW TO CONVICT APPELLANT OF ILLEGAL
    ASSEMBLY OR POSSESSION OF CHEMICALS FOR THE
    MANUFACTURE OF DRUGS AS INDICTED; OR, IN THE
    ALTERNATIVE, THE CONVICTIONS WERE AGAINST
    THE MANIFEST WEIGHT OF THE EVIDENCE.
    III. THE COURT ERRED IN PERMITTING THE
    TESTIMONY OF THOMAS KELLEY REGARDING
    UNKNOWN THIRD PARTY CONDUCT IN PURCHASING
    PSEUDOEPHEDRINE FROM WAVERLY WALMART
    WHEN SUCH ALLEGED INCIDENTS ARE UNRELATED
    TO THE PRESENT CASE AND THE SAME ARE
    SEVERELY PREJUDICIAL.”
    ASSIGNMENT OF ERROR ONE
    {¶37} Under the first assignment of error, Appellant points out that
    venue is an essential element of proving a criminal defendant’s guilt at trial.
    At the close of trial, Appellant’s counsel moved for a directed verdict on the
    ground of improper venue inasmuch as there was no evidence Appellant
    committed any illegal acts in Scioto County. Appellant argues the evidence
    is clear that all of the events in question occurred in Pike County, not Scioto
    County, as alleged in the indictment.
    {¶38} In response, Appellee acknowledges that the series of events
    by which Appellant and Kinzer gathered materials to manufacture
    Scioto App. No. 16CA3740                                                         15
    methamphetamine began by purchasing pseudoephedrine in Pike County.
    However, Appellee asserts there is no authority which requires all events
    leading to a criminal act to occur within one county. Moreover, the evidence
    that was linked to the criminal activity was dumped and discovered in Scioto
    County. Appellee concludes there was competent credible evidence beyond
    a reasonable doubt upon which to overcome a Crim.R. 29 motion for
    acquittal based on venue.
    A. STANDARD OF REVIEW
    {¶39} Under Crim.R. 29(A), “[t]he court on motion of a defendant
    * * *, after the evidence on either side is closed, shall order the entry of
    acquittal * * *, if the evidence is insufficient to sustain a conviction of such
    offense or offenses.” State v. Wright, 4th Dist. Athens No. 15CA31, 2016-
    Ohio-7654, ¶ 21. “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.” 
    Id.
     quoting State v. Tenace, 
    109 Ohio St.3d 255
    , 
    2006-Ohio-2417
    , 
    847 N.E.2d 386
    , ¶ 37; State v. Husted, 2014-
    Ohio-4978, 
    23 N.E.3d 253
    , ¶ 10 (4th Dist.). “When a court reviews a record
    for sufficiency, ‘[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
    Scioto App. No. 16CA3740                                                      16
    doubt.’ ” Id. at 22, quoting State v. Maxwell, 
    139 Ohio St.3d 12
    , 2014-Ohio-
    1019, 
    9 N.E.3d 930
    , ¶ 146, quoting State v. Jenks, 
    61 Ohio St.3d 259
    , 
    574 N.E.2d 492
     (1991), paragraph two of the syllabus; Jackson v. Virginia, 
    443 U.S. 307
    , 
    99 S.Ct. 2781
     (1979). In making its ruling a court does not weigh
    the evidence but simply determines whether the evidence, if believed, is
    adequate to support a conviction. In other words, the motion does not test
    the rational persuasiveness of the State's case, but merely its legal adequacy.
    State v. Reyes–Rosales, 4th Dist. Adams No. 15CA1010, 
    2016-Ohio-3338
    ,
    ¶ 15. Over a century of well-established jurisprudence clearly mandates that
    a motion for judgment of acquittal must be granted when the evidence is
    insufficient for reasonable minds to find that venue is proper. State v.
    Hampton, 
    134 Ohio St.3d 447
    , 
    2012-Ohio-5688
    , 
    983 N.E.2d 324
    , ¶ 24.
    B. LEGAL ANALYSIS
    {¶40} The Ohio Constitution, Article I, Section 10 provides an
    accused the right to “a speedy public trial by an impartial jury of the county
    in which the offense is alleged to have been committed.” Hampton, 
    supra, at ¶ 19
    . The Supreme Court of Ohio has stated, “Section 10, Article I of the
    Ohio Constitution fixes venue, or the proper place to try a criminal matter
    * * *.” 
    Id.,
     quoting State v. Headley, 
    6 Ohio St.3d 475
    , 477, 
    453 N.E.2d 716
    (1983). “A conviction may not be had in a criminal case where the proof
    Scioto App. No. 16CA3740                                                     17
    fails to show that the crime alleged in the indictment occurred in the county
    where the indictment was returned.” Hampton, 
    supra,
     quoting State v.
    Nevius, 
    147 Ohio St. 263
    , 
    71 N.E.2d 258
     (1947), paragraph three of the
    syllabus.
    {¶41} The Supreme Court has also stated: “[I]t is not essential that
    the venue of the crime be proven in express terms, provided it be established
    by all the facts and circumstances in the case, beyond a reasonable doubt,
    that the crime was committed in the county and state as alleged in the
    indictment.” State v. Dickerson, 
    77 Ohio St. 34
    , 
    82 N.E. 969
     (1907),
    paragraph one of the syllabus. In our own decision in Wright, supra, we
    observed at ¶ 27:
    “ ‘The purpose of the venue requirement is to give the
    defendant the right to be tried in the vicinity of the alleged
    criminal activity, and to limit the state from indiscriminately
    seeking a favorable location for trial that might be an
    inconvenience or disadvantage to the defendant.’ ” State v.
    Webster, 8th Dist. Cuyahoga No. 102833, 
    2016-Ohio-2624
    ,
    
    2016 WL 1593052
    , ¶ 78, quoting State v. Koval, 12th Dist.
    Warren No. CA2005–06–083, 
    2006-Ohio-5377
    , ¶ 9; see also
    State v. Mercer, 4th Dist. Ross No. 14CA3448, 2015-Ohio-
    3040, at ¶ 9.”
    {¶42} “Ideally, the prosecution will establish venue with direct
    evidence.” State v. Mercer, ¶ 11, quoting State v. Quivey, 4th Dist. Meigs
    No. 04CA8, 
    2005-Ohio-5540
    , ¶ 16, (judgment reversed in part by Ohio
    Criminal Sentencing Statutes Cases, May 3, 2006), citing Toledo v.
    Scioto App. No. 16CA3740                                                      18
    Taberner, 
    61 Ohio App.3d 791
    , 793, 
    573 N.E.2d 1173
     (6th Dist.1989). Yet,
    the General Assembly has given the state considerable flexibility with
    respect to establishing venue when the state cannot determine the precise
    location at which the offense took place. Hampton, 
    supra, at ¶ 23
    . R.C.
    2901.12(G) allows for an offense that was committed in any of two or more
    jurisdictions to be charged in any of those jurisdictions. The requirement of
    “[v]enue is satisfied where there is a sufficient nexus between the defendant
    and the county of the trial.” Wright, supra, at ¶ 27, quoting State v.
    Chintalapalli, 
    88 Ohio St.3d 43
    , 45, 
    723 N.E.2d 111
     (2000), citing Draggo,
    65 Ohio St.2d at 92, 
    418 N.E.2d 1343
    .
    {¶43} The sufficiency of evidence of venue was challenged in our
    own district in Mercer, supra. There the defendant was convicted of theft
    from a Menards store. On appeal, Mercer argued no State’s witness
    explicitly testified that the store was located in Ross County. However, we
    observed although the State did not provide explicit testimony as to venue,
    the State did present evidence that the Chillicothe Police Department
    responded to the report. We concluded that while the State's evidence might
    be far from overwhelming, it was sufficient to establish venue. A reasonable
    fact-finder could determine that the Chillicothe Police Department's
    response to the scene indicated that the Menards store was located in Ross
    Scioto App. No. 16CA3740                                                        19
    County. See State v. Curry, 2nd Dist. Greene No.2012–CA–50, 2014-Ohio-
    3836, ¶ 23, State v. Woodson, 4th Dist. Ross No. 97CA2306 (Feb. 11, 1998).
    {¶44} We considered a venue issue in State v. Young, 4th Dist.
    Meigs No. 458, 
    1992 WL 188485
    , (July 28, 1992). There Young appealed
    from a kidnapping conviction, arguing on appeal that there was insufficient
    evidence that the proper venue was in Ohio. The defendant claimed that all
    the elements of the crime occurred in West Virginia. However, we found
    viewing the evidence in a light most favorable to the prosecution, any
    rational trier of fact could have found that the occurrence in Meigs County,
    Ohio, in particular of all of or at least part of the deception to remove the
    victim from her home in Ohio, had been proven beyond a reasonable doubt.
    Observing the requirements of R.C. 2901.01(A) and (G), we stated: “It is not
    essential to criminal responsibility that the accused do every act necessary to
    accomplish the crime within the jurisdiction where he is prosecuted. Venue
    lies for all the offenses in any jurisdiction in which any of the elements of
    the offense were committed.” Id. at *4.
    {¶45} We considered the defendant’s argument that venue had not
    been sufficiently proven in State v. Cremeans, 
    5 Ohio App.3d 8
    , 
    448 N.E.2d 837
     (4th Dist.1982). There, Cremeans was convicted for unlawfully
    interfering with a game protector performing his duties. On appeal,
    Scioto App. No. 16CA3740                                                      20
    Cremeans argued the trial court erred by overruling his motion for a directed
    verdict, based upon improper venue, when the exact location where the
    offense occurred was unknown by the State of Ohio. Citing the venue
    statute, R.C. 2901.012(G), we observed that the evidence was
    uncontroverted that the offense occurred close to the Athens County and
    Meigs County boundary lines. We agreed with the trial court’s conclusion
    finding R.C. 2901.12(G) applicable under the facts of the case.
    {¶46} More recently, in State v. Wright, supra, the defendant
    appealed from the judgment of the Athens County Court of Common Pleas
    convicting her of two counts of interference with custody and sentencing her
    to community control. Wright asserted that the trial court erred in denying
    her motion for judgment of acquittal at the close of the evidence because
    there was insufficient evidence of venue in Athens County when she, her
    husband, and their children did not reside in that county when the crimes
    occurred. We reasoned: “Because the “without privilege to do so” element
    of the interference with custody offenses occurred in Athens County, the fact
    that Wright, her husband, and the children may not have been residents there
    on the date she removed the children from Ohio to Texas did not deprive
    Athens County from venue to try Wright for those offenses.” After viewing
    the evidence in a light most favorable to the prosecution, we found a rational
    Scioto App. No. 16CA3740                                                                             21
    trier of fact could have found that the State had proven that Athens County
    was a proper venue for the criminal charges. Id. at 34.8
    {¶47} In the case sub judice, in making the Crim.R. 29 motion,
    defense counsel emphasized nothing in the trash bags was linked to
    Appellant, and that every action took place in Pike County. The State
    responded, citing Kinzer’s testimony that Appellant “always” drove her car;
    that the trash was from her car; and that they went to Pike County to buy
    pseudoephedrine but brought it back to Scioto County and traded it for
    methamphetamine that they used on Big Run, where the trash was found.
    The trial court overruled the Rule 29 motion and we do not find this to be
    error.
    {¶48} After reviewing the evidence in a light most favorable to the
    prosecution, any rational trier of fact could have found that the element of
    venue, in Scioto County, proven beyond a reasonable doubt. The evidence
    is clear that Appellant purchased pseudoephedrine in Pike County.
    However, the ODNR officers discovered a clandestine lab, one-pot method,
    8
    See State v. Miller, 63 Ohio App.3d at 485, 
    579 N.E.2d 276
     (finding venue appropriate where it was
    obvious the crime occurred somewhere along the banks of the Little Miami River, but uncertain if the
    incident occurred in Warren County or a neighboring county through which the Little Miami River runs),
    See also State v. Palmer, 9th Dist. No. Civ.A. 2323-M, 
    1995 WL 48442
     (finding venue appropriate in
    Medina County where a child victim could not recall if offenses occurred at her family's residence in
    Cuyahoga County or their subsequent residence in Medina County due to her young age), and State v.
    Christman, 7th Dist. No. 786, 
    1999 WL 343411
     (finding venue appropriate in Monroe County where
    murder victim, whose body was never found, was last seen by defendant and reported missing in Belmont
    County, but defendant made statements to several witnesses that places in Monroe County would be good
    for hiding a body or that he buried the victim at those places).
    Scioto App. No. 16CA3740                                                         22
    in trash bags discarded in Scioto County. The trash bags contained the
    various ingredients and precursors to methamphetamine production, i.e. the
    empty boxes of Leader Allergy Relief D-24; the cut ice compress; the empty
    blister packs; the grocery list for coffee filters and sea salt; and the Mello
    Yello bottle containing a syringe.
    {¶49} Jeannie Kinzer testified she did not make methamphetamine,
    but she gave her boxes of pseudoephedrine to Appellant and he returned
    with methamphetamine. She testified he always drove her car. She testified
    she did not cut the ice compress, and she did not discard the trash bags.
    These facts will be discussed further below.
    {¶50} We find, however, any rational trier of fact could have found
    an element of the manufacture of methamphetamine, as in Young, supra,
    was committed in Scioto County. The evidence is uncontroverted that
    Appellant’s offense, as in Cremeans, occurred close to the Scioto and Pike
    County line, making R.C. 2901.12(G) applicable to these facts. For the
    foregoing reasons, we find the trial court did not err by overruling
    Appellant’s Crim.R. 29 motion for acquittal.
    ASSIGNMENT OF ERROR TWO
    {¶51} Appellant argues under the second assignment of error that the
    evidence was legally insufficient to convict him or, in the alternative, that
    Scioto App. No. 16CA3740                                                       23
    his conviction was against the manifest weight of the evidence. He contends
    there is no direct evidence that Appellant engaged in the illegal assembly or
    possession of chemicals for the manufacturing of drugs, specifically
    methamphetamine. Specifically, he argues the State presented no evidence
    linking him to the items discovered by the ODNR officers, only that he
    purchased pseudoephedrine and had used methamphetamine during the
    relevant time period. Moreover, he argues, the State’s case used inferences
    and circumstantial evidence and failed to prove the essential element that
    Appellant had an intent to manufacture.
    A. STANDARD OF REVIEW
    {¶52} When an appellate court considers a claim that a conviction is
    against the manifest weight of the evidence, the court must dutifully
    examine the entire record, weigh the evidence, and consider the credibility
    of witnesses. The reviewing court must bear in mind however, that
    credibility generally is an issue for the trier of fact to resolve. State v.
    Wickersham, 4th Dist. Meigs No. 13CA10, 
    2015-Ohio-2756
    , ¶ 25; State v.
    Issa, 
    93 Ohio St.3d 49
    , 67, 
    752 N.E.2d 904
     (2001); State v. Murphy, 4th
    Dist. Ross No. 07CA2953, 
    2008-Ohio-1744
    , ¶ 31. “ ‘Because the trier of
    fact sees and hears the witnesses and is particularly competent to decide
    “whether, and to what extent, to credit the testimony of particular
    Scioto App. No. 16CA3740                                                       24
    witnesses,” we must afford substantial deference to its determinations of
    credibility.’ ” Barberton v. Jenney, 
    126 Ohio St.3d 5
    , 
    2010-Ohio-2420
    , 
    929 N.E.2d 1047
    , ¶ 20, quoting State v. Konya, 2nd Dist. Montgomery No.
    21434, 
    2006-Ohio-6312
    , ¶ 6, quoting State v. Lawson, 2nd Dist.
    Montgomery No. 16288 (Aug. 22, 1997). As explained in Eastley v.
    Volkman, 
    132 Ohio St.3d 328
    , 
    972 N.E.2d 517
    :
    “ ‘[I]n determining whether the judgment below is manifestly
    against the weight of the evidence, every reasonable intendment
    must be made in favor of the judgment and the finding of facts.
    ***
    If the evidence is susceptible of more than one construction, the
    reviewing court is bound to give it that interpretation which is
    consistent with the verdict and judgment, most favorable to
    sustaining the verdict and judgment.’ ” Eastley at ¶ 21, quoting
    Seasons Coal Co., Inc. v. Cleveland, 
    10 Ohio St.3d 77
    , 80, 
    461 N.E.2d 1273
     (1984), fn.3, quoting 5 Ohio Jurisprudence 3d,
    Appellate Review, Section 60, at 191-192 (1978).
    Thus, an appellate court will leave the issues of weight and credibility of the
    evidence to the fact finder, as long as a rational basis exists in the record for
    its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-
    Ohio-1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No. 07CA2948,
    
    2007-Ohio-6331
    , ¶ 6 (“We will not intercede as long as the trier of fact has
    some factual and rational basis for its determination of credibility and
    weight.”).
    Scioto App. No. 16CA3740                                                       25
    {¶53} Once the reviewing court finishes its examination, the court
    may reverse the judgment of conviction only if it appears that the fact-finder,
    when resolving the conflicts in evidence, “ ‘clearly lost its way and created
    such a manifest miscarriage of justice that the conviction must be reversed
    and a new trial ordered.’ ” Wickersham, supra, at ¶ 26, quoting Thompkins,
    78 Ohio St.3d at 387, quoting State v. Martin, 
    20 Ohio App.3d 172
    , 175, 
    485 N.E.2d 717
     (1st Dist.1983). A reviewing court should find a conviction
    against the manifest weight of the evidence only in the “ ‘exceptional case in
    which the evidence weighs heavily against the conviction.’ ” 
    Id.,
     quoting
    Martin, 20 Ohio App.3d at 175; State v. Lindsey, 
    87 Ohio St.3d 479
    , 483,
    
    721 N.E.2d 995
     (2000).
    {¶54} When reviewing a case to determine if the record contains
    sufficient evidence to support a criminal conviction, we must “examine the
    evidence admitted at trial to determine whether such evidence, if believed,
    would convince the average mind of the defendant’s guilt beyond a
    reasonable doubt. The 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. Hollis, 4th Dist. Pickaway No. 09CA9, 2010-
    Ohio-3945, ¶ 20, citing State v. Smith, 4th Dist. Pickaway No. 06CA7, 2007-
    Scioto App. No. 16CA3740                                                         26
    Ohio-502, at ¶ 33, quoting State v. Jenks at paragraph two of the syllabus.
    See also Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S.Ct. 2781
     (1979).
    {¶55} The sufficiency of the evidence test “raises a question of law
    and does not allow us to weigh the evidence.” Hollis at ¶ 21; Smith at ¶ 34,
    citing State v. Martin, 
    20 Ohio App.3d 172
    , 175, 
    485 N.E.2d 717
     (1983).
    Instead, the sufficiency of the evidence test “ ‘gives full play to the
    responsibility of the trier of fact [to fairly] resolve conflicts in the testimony,
    to weigh the evidence, and to draw reasonable inferences from basic facts to
    ultimate facts.’ ” Smith, at ¶ 34, citing State v. Thomas, 
    70 Ohio St.2d 79
    ,
    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.
    B. LEGAL ANALYSIS
    {¶56} 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.
    Wickersham, supra, at ¶ 27. State v. Pollitt, 4th Dist. Scioto No. 08CA3263,
    
    2010-Ohio-2556
    , ¶ 15. “ ‘Thus, a determination that [a] conviction is
    supported by the weight of the evidence will also be dispositive of the issue
    of sufficiency.’ ” State v. Lombardi, 9th Dist. Summit No. 22435, 2005-
    Scioto App. No. 16CA3740                                                    27
    Ohio-4942, ¶ 9, quoting State v. Roberts, 9th Dist. Lorain No. 96CA006462
    (Sept. 17, 1997).
    {¶57} Appellant was convicted of R.C. 2925.04 which states:
    “(A) No person shall knowingly cultivate marihuana or
    knowingly manufacture or otherwise engage in any part of the
    production of a controlled substance.”
    {¶58} Appellant was also convicted of R.C. 2925.041, illegal
    assembly or possession of chemicals for manufacture of drugs which
    provides:
    “(A) 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.”
    {¶59} Furthermore, R.C. 2925.041(B) provides:
    “In a prosecution under this section, it is not necessary to allege
    or prove that the offender assembled or possessed all chemicals
    necessary to manufacture a controlled substance in schedule I
    or II. The assembly or possession of a single chemical that may
    be used in the manufacture of a controlled substance in
    schedule I or II, with the intent to manufacture a controlled
    substance in either schedule, is sufficient to violate this
    section.”
    {¶60} The evidence against Appellant is circumstantial and we begin
    by recognizing that it is well-established, however, that “a defendant may be
    convicted solely on the basis of circumstantial evidence. Wickersham, supra,
    at ¶ 39, quoting State v. Nicely, 
    39 Ohio St.3d 147
    , 151, 
    529 N.E.2d 1236
    Scioto App. No. 16CA3740                                                      28
    (1988). “Circumstantial evidence and direct evidence inherently possess the
    same probative value.” Jenks, paragraph one of the syllabus.
    “Circumstantial evidence is defined as ‘[t]estimony not based on actual
    personal knowledge or observation of the facts in controversy, but of other
    facts from which deductions are drawn, showing indirectly the facts sought
    to be proved. * * *’ ” Nicely, 39 Ohio St.3d at 150, quoting Black's Law
    Dictionary (5 Ed.1979) 221.
    {¶61} As we begin our analysis, we call attention to the Eighth
    District Court of Appeals in State v. Seldon, 8th Dist. Cuyahoga No. 98429,
    
    2013-Ohio-819
    , where the defendant’s conviction for assembly or
    possession of chemicals used for the manufacture of drugs was overturned
    by the appellate court. Seldon was charged with one count of assembly or
    possession of chemicals used for the manufacture of drugs and one count of
    carrying a concealed weapon subsequent to a lawful traffic stop. Seldon was
    driving his friend’s truck and two others were riding with him. Pursuant to
    the stop, troopers located various items which can be used in the
    manufacture of a controlled substance. At trial, Seldon’s father testified his
    son was going to look for work in the area at the time of his stop. Seldon
    testified some of the items in the truck were purchased by him that day, for
    the purpose of work on damaged or inoperable vehicles. He testified, in
    Scioto App. No. 16CA3740                                                     29
    particular, to having matchbooks because he stamped them to advertise his
    services. He admitted 24 Sudafed pills were his, but a package of 96, and
    some starting fluid, were not his. He testified to having iodine in the vehicle
    to treat sores on his arm.
    {¶62} Seldon further acknowledged trying methamphetamine, but
    testified it was years before, not one week before as a trooper had previously
    testified. He denied that the items in the truck were purchased for the
    purpose of illegally manufacturing methamphetamine. He also denied
    knowing how to manufacture methamphetamine or having done so in the
    past. Although the jury returned a guilty verdict, the appellate court held the
    State failed to prove by sufficient evidence that Seldon possessed the
    chemicals discovered with an intent to manufacture methamphetamine. In
    this case, the court held at ¶ 21:
    “Under the clear requirements of R.C. 2925.041(A), the mere
    assembly or possession of chemicals that could be used to
    produce a controlled substance is not sufficient to prove the
    performance of the criminal act. State v. Cumberledge, 11th
    Dist. No. 2010–L–142, 2012–Ohio–3012. In addition to
    possessing the chemical, the state must further demonstrate a
    present intent on the part of the defendant to actually use the
    chemical in the future to produce the illegal drug. 
    Id.
    ***
    In most instances, proof of this intent will likely be based upon
    the defendant's completion of a subsequent act, such as an
    initial step in the manufacturing process.” Seldon, 
    supra.
    Scioto App. No. 16CA3740                                                      30
    {¶63} The Seldon court emphasized at ¶ 24:
    “In cases throughout Ohio where convictions for Assembly or
    Possession of Chemicals used to Manufacture Controlled
    Substance were upheld, the state produced evidence from which
    a jury could conclude beyond a reasonable doubt that the
    requisite intent to manufacture existed. Seldon at 24. Such
    evidence included the following: That the defendant knew how
    to manufacture methamphetamine, State v. Stevenson, 5th Dist.
    No. 09CA16, 
    2010-Ohio-2060
    ; that the defendant made
    admissions that he intended to manufacture and/or had
    participated in the manufacture of methamphetamine, State v.
    Smith, 4th Dist. No. 09CA29, 
    2010-Ohio-4507
    ; that the
    defendant's prior acts or statements of accomplices and/or other
    witnesses, demonstrated the defendant's knowing participation
    in the manufacture of methamphetamine, Cumberledge, supra;
    the defendant, in addition to chemicals, possessed the actual
    physical equipment needed to manufacture methamphetamine,
    such as beakers, filters, tubing, electrical tape, copper fittings, a
    heat source, etc., State v. Throckmorton, 4th Dist. No. 08CA17,
    
    2009-Ohio-5344
    , reversed on other grounds; the defendant
    possessed or had known access to a methamphetamine lab, or
    had injuries consistent with work in a methamphetamine lab,
    State v. Downing, 12th Dist. No. CA2009-09-036; the
    defendant possessed quantities of the drug, or known drug
    delivery devices, i.e., syringes, contemporaneous with his
    possession of the chemicals, Throckmorton, supra.”
    {¶64} Seldon held at ¶ 25:
    “This court is not requiring all of the above, we are just
    referencing the many methods the state may use to prove an
    intent on the part of the accused to manufacture
    methamphetamine, none of which were utilized by the state.
    The state's entire case is based on Seldon's possession of some
    legally possessed items. It has set forth no evidence that Seldon
    completed a subsequent act beyond mere possession, no
    evidence of Seldon's prior production of the controlled
    substance and no evidence that Seldon knew how to
    manufacture the drug. See Cumberledge, Stevenson. In fact,
    Scioto App. No. 16CA3740                                                     31
    Seldon testified that he did not know how to manufacture
    methamphetamine.”
    {¶65} In this case, it is true that the prosecution was unable to present
    evidence that Appellant knew how to manufacture methamphetamine; that
    he had made previous admissions that he intended to manufacture or
    participate in the process; or that he had been injured in the process.
    Furthermore, none of the evidence produced was discovered on Appellant’s
    person, such as chemicals and ingredients, physical equipment, or delivery
    devices. However, by the end of Appellant’s trial, the jury had heard the
    following evidence:
    1) That Appellant and Kinzer purchased pseudoephedrine on
    the same dates at Pike County pharmacies:
    2) That garbage bags found in Scioto County contained the
    envelope addressed to Ms. Kinzer; 3 empty boxes of Leader
    Allergy Relief D-24; empty pill blister packs; an ice compress
    containing ammonium nitrate with the corner cut; an empty
    package of electrical tape; the grocery list; and a Mello Yello
    bottle containing a syringe;
    3) That Appellant and Kinzer purchased pseudoephedrine,
    traded it for methamphetamine, and Appellant handled the
    transactions to obtain methamphetamine;
    4) That the area where the trash bags were found was where
    Appellant and Kinzer regularly went to use drugs;
    5) That Officer Carlson opined the garbage bags contained a
    “one-pot” method which had been discarded;
    6) That Appellant “always” drove Kinzer’s car;
    Scioto App. No. 16CA3740                                                     32
    7) That Ms. Kinzer denied discarding the trash bags and cutting
    the corner of the ice pack containing the ammonium nitrate, and
    that she denied recognizing the Mello Yello bottle containing
    the syringe;
    8) That Ms. Kinzer’s brother had “nothing to do” with the items
    found in the trash bags;
    9) That Asset Production Manager Andy Canterbury verified
    the Walmart security camera footage and receipts for items
    purchased by Appellant and Ms. Kinzer on October 3, 2014;
    10) That Ms. Kinzer admitted she and Appellant used syringes
    to inject methamphetamine; and
    11) That Ms. Kinzer specified Appellant took her boxes of
    pseudoephedrine and returned with methamphetamine.
    {¶66} Based on our review of the trial transcript, we find there was
    circumstantial evidence in this case supporting the conclusion that Appellant
    intended to manufacture methamphetamine. Officer Carlson opined the
    trash bags contained a “one-pot method” discarded in a clandestine location
    in Scioto County. Appellant was familiar with the area where the trash bags
    containing the ingredients were discarded because he went there almost
    daily in late 2014 to inject methamphetamine. Appellant engaged in
    suspicious transactions and enlisted Kinzer to purchase it for him. They
    purchased pseudoephedrine together, in frequent transactions, at two
    different pharmacies. Regarding circumstantial evidence of intent, it has
    been stated:
    Scioto App. No. 16CA3740                                                     33
    “Intent lies within the privacy of an individual's own thoughts
    and is not susceptible of objective proof.” Wickersham, supra,
    at ¶ 30, quoting State v. Garner, 
    74 Ohio St.3d 49
    , 60, 
    656 N.E.2d 623
     (1995). So “intent ‘can never be proved by the
    direct testimony of a third person.’ ” State v. Moon, 4th Dist.
    Adams App. No. 08CA875, 
    2009-Ohio-4830
    , ¶ 20, quoting
    State v. Lott, 
    51 Ohio St.3d 160
    , 168, 
    555 N.E.2d 293
     (1990).
    Rather it “ ‘must * * * be inferred from the act itself and the
    surrounding circumstances, including the acts and statements of
    the defendant surrounding the time of the offense.’ ” 
    Id.,
    quoting State v. Wilson, 12th Dist. Warren No. CA2006–01–
    007, 
    2007-Ohio-2298
    , ¶ 41. But “persons are presumed to have
    intended the natural, reasonable and probable consequences of
    their voluntary acts.” Garner at ¶ 60.
    {¶67} It is a logical inference that Appellant was familiar with the
    necessity of pseudoephedrine as a key ingredient used to make
    methamphetamine. He took control of the boxes Kinzer purchased and
    returned with the finished product. “A person acts knowingly, regardless of
    his purpose, when he is aware that his conduct will probably cause a certain
    result or will probably be of a certain nature. A person has knowledge of
    circumstances when he is aware that such circumstances probably exist.”
    State v. Evans-Goode, 4th Dist. Meigs No. 15CA10, 
    2016-Ohio-5361
    , ¶ 8;
    R.C. 2901.22(B). “[W]hether a person acts knowingly can only be
    determined, absent a defendant's admission, from all the surrounding facts
    and circumstances * * *.” Garner, 
    74 Ohio St.3d 49
    , 60, 
    656 N.E.2d 623
    (1995), quoting State v. Huff, 
    145 Ohio App.3d 555
    , 563, 
    763 N.E.2d 695
    (1st Dist.2001).
    Scioto App. No. 16CA3740                                                      34
    {¶68} Furthermore, Appellant “always” drove Kinzer’s car.
    “ ‘[P]ossession’ is defined as ‘having control over a thing or substance, but
    may not be inferred solely from mere access to the thing or substance
    through ownership or occupation of the premises upon which the thing or
    substance is found.’ ” Wickersham, supra, at ¶ 10, quoting State v. Gavin,
    4th Dist. Scioto No. 13CA3592, 
    2015-Ohio-2996
    , ¶ 35; citing R.C.
    2925.01(K). “Possession may be actual or constructive.” Gavin; quoting
    State v. Moon, 4th Dist. Adams No. 08CA875, 
    2009-Ohio-4830
    , ¶ 19; citing
    State v. Butler, 
    42 Ohio St.3d 174
    , 175, 
    538 N.E.2d 98
     (1989) (“[t]o
    constitute possession, it is sufficient that the defendant has constructive
    possession”).
    {¶69} “ ‘Actual possession exists when the circumstances indicate
    that an individual has or had an item within his immediate physical
    possession.’ ” Wickersham, supra, at ¶ 11, quoting Gavin at ¶ 36; State v.
    Kingsland, 
    177 Ohio App.3d 655
    , 
    2008-Ohio-4148
    , 
    895 N.E.2d 633
    , ¶ 13
    (4th Dist.; quoting State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-
    5747, ¶ 39. “Constructive possession exists when an individual knowingly
    exercises dominion and control over an object, even though that object may
    not be within his immediate physical possession.” Gavin, 
    supra,
     quoting
    State v. Hankerson, 
    70 Ohio St.2d 87
    , 
    434 N.E.2d 1362
    , syllabus (1982);
    Scioto App. No. 16CA3740                                                      35
    State v. Brown, 4th Dist. Athens No. 09CA3, 
    2009-Ohio-5390
    , ¶ 19. For
    constructive possession to exist, the State must show that the defendant was
    conscious of the object's presence. Gavin, 
    supra;
     Hankerson at 91;
    Kingsland at ¶ 13. Both dominion and control, and whether a person was
    conscious of the object's presence, may be established through
    circumstantial evidence. Gavin, 
    supra;
     Brown at ¶ 19. “Moreover, two or
    more persons may have joint constructive possession of the same object.” 
    Id.
    {¶70} Here, and based on the evidence, it is a logical inference that
    Appellant had constructive and actual possession and control over Kinzer’s
    vehicle, the discarded trash bags, and the contents therein. Kinzer
    specifically excluded her brother as having anything to do with the contents
    of the trash bags. She also denied cutting the corner of the ice pack and
    dumping the trash. The logical inference is that Appellant, frequently in
    possession and control of her vehicle, would have been the person to cut the
    ice pack and dump the trash.
    {¶71} Kinzer testified she and Appellant used syringes to inject
    methamphetamine. While Kinzer denied knowledge of the Mello Yello
    bottle containing her DNA and syringe found in the trash, the jury was free
    to believe some, all, or none of her testimony, and was instructed
    accordingly. Combing Kinzer’s denials, along with the absence of any
    Scioto App. No. 16CA3740                                                     36
    evidence that other person or person had control or custody of her car or the
    trash bags, circumstantially links Appellant to the “one-pot method”
    discarded alongside the desolate Scioto County road. Importantly, in the
    absence of other evidence that someone else cut the ice pack, it may be
    logically inferred the Appellant completed a “subsequent act, * * * in the
    manufacturing process.” As cited above, “intent” is to be inferred from the
    acts and surrounding circumstances.
    {¶72} In State v. Isaac, 5th Dist. Richland No. 15CA87, 2016-Ohio-
    7376, the defendant maintained the State had failed to prove the culpable
    mental state of “knowingly” in two counts of illegal manufacture of
    methamphetamine and illegal assembly or possession. Isaac, who was
    temporarily staying with a friend while experiencing marital problems,
    asserted she had no knowledge of the methamphetamine lab in the basement
    of her friends’ residence. Isaac maintained the State did not demonstrate her
    knowledge of the methamphetamine lab or the possession of chemicals in
    the basement. The appellate court disagreed, holding at ¶ 57:
    “Viewing the evidence in a light most favorable to the
    prosecution, we find a rational trier of fact could have found the
    essential elements of the charges proven beyond a reasonable
    doubt. Testimony at trial established [Isaac] had a prior history
    of purchasing a significant quantity of pseudoephedrine,
    including a recent attempted purchase with [her codefendant]
    with whom she was residing on August 12, 2014. Specifically,
    [Isaac] purchased an inordinate amount of pseudoephedrine in
    Scioto App. No. 16CA3740                                                     37
    the months prior to August 12, 2014. Testimony of [her friend’s
    husband] at trial established [Isaac] used the basement in the
    home, including doing laundry there. Items consistent with the
    manufacture of methamphetamine were discovered in the
    basement. The liquid from the one-pot cook method taken from
    the home subsequently tested positive for methamphetamine.
    Viewing the evidence in a light most favorable to the
    prosecution, we find a rational trier of fact could find beyond a
    reasonable doubt Appellant knew about and participated in the
    manufacture of methamphetamine and possessed chemicals
    necessary for the manufacture of methamphetamine * * *.” Id.
    at 58.
    {¶73} Appellant’s convictions, like Isaac’s, are based on
    circumstantial evidence entirely. Appellant’s intent was proved by
    circumstantial evidence. Appellant, like Isaac, had an extensive purchase
    history of pseudoephedrine products, and like Isaac, purchased with a friend.
    Like Isaac, who had control of the basement where she was staying and the
    one-pot method was discovered, Appellant had custody and control of
    Kinzer’s car and the discarded one-pot method. We reiterate the jury was in
    the best position to observe the witnesses and evaluate their credibility.
    Having reviewed the entire record, weighed the entirely circumstantial
    evidence, and considered the credibility of the witnesses, we do not find this
    to be the exceptional case where the evidence weighs heavily against
    conviction. The evidence supports the finding that Appellant had engaged in
    the manufacture of methamphetamine, along with the illegal assembly and
    possession of one or more chemicals necessary to manufacture
    Scioto App. No. 16CA3740                                                     38
    methamphetamine. Therefore his conviction is not against the manifest
    weight of the evidence. Furthermore, having found his conviction is not
    against the weight of the evidence, we necessarily find that it is supported by
    sufficient evidence. As such, we overrule Appellant’s second assignment of
    error and affirm the judgment of the trial court.
    ASSIGNMENT OF ERROR THREE
    {¶74} Appellant argues the testimony by the Thomas Kelley, the
    pharmacist for Walmart in Waverly, about the common practice of Scioto
    County individuals coming to Pike County to purchase pseudoephedrine and
    other chemicals commonly used to manufacture methamphetamine should
    have been excluded under Evid.R. 403(A). Appellant contends the
    testimony provided no probative value as to the ultimate determination and
    was highly prejudicial. Citing a lack of evidence linking Appellant to the
    alleged crime, Appellant argues the testimony had the effect of unfairly
    swaying the jury.
    A. STANDARD OF REVIEW
    {¶75} The admission or exclusion of evidence generally rests within
    the trial court's sound discretion. State v. Minton, 4th Dist. Adams No.
    15CA1006, 
    2016-Ohio-5427
    , ¶ 45; State v. Green, 
    184 Ohio App.3d 406
    ,
    
    2009-Ohio-5199
    , 
    921 N.E.2d 276
    , ¶ 14 (4th Dist.). Thus, an appellate court
    Scioto App. No. 16CA3740                                                         39
    will not disturb a trial court's ruling regarding the admissibility of evidence
    absent a clear showing of an abuse of discretion with attendant material
    prejudice to defendant. 
    Id.
     As mentioned previously, an abuse of discretion
    implies that a court's attitude is unreasonable, arbitrary, or unconscionable.
    B. LEGAL ANALYSIS
    {¶76} In this case, the prosecutor had asked Kelley, the pharmacist:
    “Are there products that perform the legitimate function that don’t contain
    the chemical that can be converted to meth?” The pharmacist explained
    there is another product the pharmacy could provide which is not easily
    broken down into methamphetamine. The pharmacist explained that many
    times, purchasers are not deterred by the recommendation, presumably
    because they are wanting to obtain pseudoephedrine for an illegal purpose.
    The pharmacist continued:
    “Well, unfortunately we- - you know, we do see many folks
    coming in from Scioto County to our pharmacy. And - - I say
    that because I’ve actually visually saw Scioto County driver’s
    license, non-driver’s and – and they will come in and ask for
    pseudoephedrine or 12 hour decongestant.”
    {¶77} At this point, defense counsel objected and was overruled.
    Kelley continued:
    “Typically on a - - and I work five days a week typically. It’s
    not uncommon for us in a day’s time at our Waverly Walmart
    we will probably have 40 – 30 to 40 people come in asking for
    12 hour decongestant. Typically out of that 30- to 40 half, if
    Scioto App. No. 16CA3740                                                      40
    not more than half, will be Scioto County residents. And they
    are coming to us requesting - - I’ve actually visually seen - - as
    I was sitting on my lunch break one day it’s - - it’s so
    apparent - - ”
    {¶78} Shortly thereafter, defense counsel interposed another
    objection which was overruled. Kelley continued:
    “Well many times and these are - - these are - - what makes me
    understand the process more readily, these are not patients.
    First of all, they have to present a driver’s license to us that has
    to be legal. Many times these folks that present them, we ask
    - - we verify their address with them. They won’t know what
    their address is on their 
    ID.
     They are not patients. They don’t
    have prescript - - they’re not getting prescriptions from our
    pharmacy. So they don’t have an established relationship with
    our pharmacy.”
    {¶79} Counsel again objected and was overruled. The State clarified
    that Kelley was not testifying, in particular, about Appellant, but was
    “generally speaking” of what he observed as a pharmacist. The State now
    argues that the pharmacist’s testimony was rationally based upon the
    pharmacist’s perception and was helpful to the jury in the determination of
    the reasons a Scioto County resident, such as Appellant, would go to Pike
    County to purchase pseudoephedrine. Citing Evid.R. 701, the State argues
    this testimony was admissible. The pharmacist went on to testify as to the
    federal regulations Walmart is required to follow before they can sell
    pseudoephedrine products.
    {¶80} Since the adoption of the Rules of Evidence, both on the state
    Scioto App. No. 16CA3740                                                       41
    and federal levels, many courts have used an Evid.R. 701 analysis and have
    allowed lay witnesses to testify about, for example, the identity of a drug.
    State v. Johnson, 4th Dist. Gallia No. 
    2014-Ohio-4032
    , ¶ 38; State v. McKee,
    
    91 Ohio St.3d 292
    , 
    2001-Ohio-41
    , 
    744 N.E.2d 737
    . Evid.R. 701 provides:
    “If the witness is not testifying as an expert, his testimony in the
    form of opinions or inferences is limited to those opinions or
    inferences which are (1) rationally based on the perception of
    the witness and (2) helpful to a clear understanding of his
    testimony or the determination of a fact in issue.”
    “[C]ourts have permitted lay witnesses to express their opinions
    in areas in which it would ordinarily be expected that an expert
    must be qualified under Evid.R. 702. Although these cases are
    of a technical nature in that they allow lay opinion testimony on
    a subject outside the realm of common knowledge, they will
    fall within the ambit of the rules requirement that a lay witness's
    opinion be rationally based on firsthand observations and
    helpful in determining a fact in issue. These cases are not based
    on specialized knowledge within the scope of Evid.R. 702, but
    rather are based upon a layperson's personal knowledge and
    experience.”
    {¶81} In the case sub judice, the pharmacist had been identifying
    Appellant and Kinzer’s purchase records when the testimony occurred. The
    pharmacist went on to testify about the NPLEX system and Walmart’s role
    in keeping these required records. We find the additional testimony about
    Kelley’s observation that individuals, with no patient relationship to the
    Walmart pharmacy, often come from Scioto County to Pike County to
    Scioto App. No. 16CA3740                                                      42
    purchase pseudoephedrine, is helpful to an understanding of why such
    meticulous records are required by the government and kept by Walmart.
    {¶82} Yet, we agree that Appellant makes a valid argument. While
    we have found no cases where this type of testimony from a pharmacist or
    pharmacy employee has been challenged, we liken Kelley’s testimony about
    the frequent practice of individuals coming from out of county to purchase
    pseudoephedrine to testimony about defendants being observed or arrested
    in “high crime areas.”
    {¶83} In State v. Draper, 10th Dist. Franklin No. 02AP-1371, 2003-
    Ohio-3751, the defendant contended that an officer’s testimony concerning
    the high incidence of drug-trafficking and narcotics and weapons arrests in
    the area where a defendant was arrested also constituted impermissible other
    acts evidence, the admission of which deprived him of a fair trial. The
    Draper court began by noting that Evid.R. 404(A) bars evidence regarding a
    defendant's character and evidence of the defendant's other acts to
    demonstrate that character. Id. at 21. The appellate court pointed out the
    challenged evidence referred to the character of the neighborhood and the
    general acts of the people in the neighborhood, not the character or other
    acts of defendant. Id. See State v. Attaway (Apr. 5, 2001), Cuyahoga App.
    No. 77641, appeal not allowed, 
    93 Ohio St.3d 1410
    , 
    754 N.E.2d 258
    .
    Scioto App. No. 16CA3740                                                        43
    {¶84} Draper held that the challenge to the evidence concerning the
    neighborhood was probably more conducive to review under Evid.R. 402,
    speaking to the inadmissibility of irrelevant evidence, or Evid.R. 403(A),
    addressing the inadmissibility of relevant evidence if its probative value is
    substantially outweighed by danger of unfair prejudice. 
    Id.
     Ultimately,
    however, the appellate court held: “Although references to an area being a
    high-crime area, in some circumstances, may be irrelevant or prejudicial, see
    State v. Santiago, 10th Dist. Franklin No. 02AP–1094, 
    2003-Ohio-2877
    , at
    ¶ 26, citing State v. Maddox (June 29, 2001), Montgomery App. No. 18389,
    appeal not allowed, 
    93 Ohio St.3d 1459
    , 
    756 N.E.2d 1235
    , the trial court's
    allowing the testimony under the circumstances of this case did not prejudice
    defendant.” See also State v. Dodson, 10th Dist. Franklin No.10AP-603,
    
    2011-Ohio-1092
    , ¶¶ 33-36.
    {¶85} While we recognize the potential for prejudicial effect by
    Kelley’s testimony, we do not think it far outweighed the probative value of
    the testimony in aiding the jury’s understanding of why pseudoephedrine
    sales are so heavily regulated by the government. Furthermore, we do not
    perceive this evidence as the sole evidence the jury relied upon in convicting
    Appellant. As discussed in our resolution of assignment of error two above,
    the circumstantial evidence of Appellant’s near daily use of
    Scioto App. No. 16CA3740                                                         44
    methamphetamine; the evidence of Appellant’s possession and control of
    Kinzer’s vehicle, to the exclusion of anyone but Kinzer, where he often used
    methamphetamine; Appellant’s own pseudoephedrine purchase records; his
    appearance on the Walmart surveillance video on the relevant purchase
    dates, Kinzer’s denial that she discarded the trash bags containing the “one-
    pot” method; and Kinzer’s denial of knowledge of the Mello Yello bottle
    and syringe, along with her denial that she cut the corner of the ice
    compress, all point to Appellant’s knowledge and intent to manufacture
    methamphetamine. As such, we find ample evidence that Appellant would
    have been convicted, had Kelley’s testimony been excluded. We do not find
    it highly prejudicial nor an abuse of the trial court’s discretion by allowing
    it.
    {¶86} For the foregoing reasons, we overrule Appellant’s third
    assignment of error and affirm the judgment of the trial court.
    JUDGMENT AFFIRMED.
    Scioto App. No. 16CA3740                                                       45
    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 Scioto 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, J.: Concurs in Judgment and Opinion.
    Harsha, J.: Concurs in Judgment and Opinion as to Assignment of Error II;
    Concurs in Judgment Only as to Assignments of Error I & III.
    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.