State v. Chandler

[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: 11/17/14
_____________________________________________________________
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.