[Cite as State v. Haas, 2014-Ohio-5770.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2014-A-0025
- vs - :
CHARLES B. HAAS, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2013
CR 623.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).
Anna Markovich, 18975 Villaview Road, Suite 3, Cleveland, OH 44119 (For
Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Charles B. Haas, appeals his conviction, following a jury trial, in
the Ashtabula County Court of Common Pleas of illegal manufacturing of
methamphetamine and illegal assembly or possession of chemicals for the manufacture
of methamphetamine. At issue is whether appellant’s conviction was supported by
sufficient, credible evidence. For the reasons that follow, we affirm.
{¶2} Appellant was charged in a ten-count indictment with offenses related to
the illegal manufacture of methamphetamine (“meth”) and the illegal assembly or
possession of chemicals for the manufacture of meth. After the trial court dismissed
certain counts and merged others, appellant was convicted of the following three
offenses: one count of illegal manufacture of meth, a felony of the first degree, and two
counts of illegal assembly or possession of chemicals for the manufacture of meth, each
being a felony of the third degree.
{¶3} The statement of facts that follows is derived from the evidence presented
during the jury trial. Lieutenant Timothy Brown of the Madison Township Police
Department testified he is assigned to investigate and prosecute meth violations in the
township. Since 2011, he has been involved in the prosecution of some 250 people for
meth violations. He said that all Ohio pharmacies are required by law to report all sales
and attempted sales of pseudoephedrine to a central pseudoephedrine clearing house,
called NPLEX. Pseudoephedrine, a decongestant, is the active ingredient of meth. The
purpose of the NPLEX system is to monitor suspicious purchases of pseudoephedrine
tablets. A customer cannot purchase more pseudoephedrine than the amount
prescribed by law in any consecutive 30-day period. Purchases of pseudoephedrine
must be made at a pharmacy. All purchase requests are submitted by the pharmacy to
NPLEX along with the customer’s driver’s license. The transaction is either approved
by NPLEX or, if the amount requested exceeds the limit prescribed by law, the
transaction is denied. All such transactions are recorded and the information is
available to law enforcement. While purchases may be technically within the prescribed
limits, the number, frequency, timing, and other pertinent circumstances surrounding
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purchases of pseudoephedrine are considered by law enforcement in determining
whether purchases are suspicious.
{¶4} Lt. Brown testified that, due to the limit on the amount of pseudoephedrine
a customer can purchase, manufacturers of meth often enlist friends, relatives, and
other drug users to purchase pseudoephedrine for them to be used to manufacture
meth. These buyers typically purchase the pseudoephedrine for the manufacturer in
exchange for cash, meth, or both.
{¶5} Lt. Brown said that on August 11, 2013, he learned that appellant had
attempted to purchase pseudoephedrine at Wal Mart in Madison, but that this attempted
purchase was denied because the purchase would have exceeded his limit for that 30-
day period. Lt. Brown entered appellant’s name in NPLEX, and saw that appellant
recently made a large number of suspicious purchases of pseudoephedrine.
{¶6} During the month of July 2013, appellant bought or was denied
pseudoephedrine eight times at various pharmacies in Ashtabula. On one date, he
attempted to buy pseudoephedrine, but the sale was denied. One-half hour later, he
tried to buy pseudoephedrine at another pharmacy, but this sale was also denied. On
another date, appellant was denied pseudoephedrine at one pharmacy, and, ten
minutes later, he tried to buy it at another pharmacy, but that sale was also denied. Lt.
Brown said that an attempt to buy pseudoephedrine at one store after being recently
denied the drug by another store makes the second purchase suspicious.
{¶7} During August 2013, appellant bought or was denied pseudoephedrine 13
times. These transactions often took place on successive or even the same days,
again, making these purchases suspicious. On one date, appellant tried to buy, but was
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denied, pseudoephedrine four times at two different pharmacies, all within a 15-minute
period.
{¶8} During the month of September 2013, appellant bought or was denied
pseudoephedrine four times. On one date, he was denied pseudoephedrine at one
pharmacy, and one-half hour later, he went to another pharmacy and bought the drug.
{¶9} Lt. Brown said that in this period, he learned that a female known to him
as Samantha McCall was making suspicious purchases of pseudoephedrine at the
same stores in Ashtabula on or near the same dates appellant was buying. This led the
officer to believe she was buying pseudoephedrine with appellant.
{¶10} Lt. Brown reviewed McCall’s NPLEX history. She bought or was denied
pseudoephedrine five times in July 2013. On one date, she tried to buy
pseudoephedrine at one pharmacy, but was denied. One-half hour later, she tried to
buy it at another pharmacy and was again denied the drug.
{¶11} McCall also bought or was denied pseudoephedrine five times in August
2013. On one date, she bought pseudoephedrine twice, once at one pharmacy and,
just 20 minutes later, at another nearby pharmacy. Lt. Brown said that people using
pseudoephedrine for legitimate purposes do not generally drive down the road to make
a separate purchase of more of the same drug.
{¶12} McCall’s NPLEX history shows that she and appellant bought or
attempted to buy pseudoephedrine at the same store within minutes of each other on
two days in August 2013, indicating that each time they were in the store together.
{¶13} Lt. Brown testified he knew that McCall is involved in a relationship with
one Jeremy Pierce. He thus reviewed Pierce’s NPLEX report and found he also made
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repeated purchases of pseudoephedrine from the same stores in Ashtabula. Pierce
bought pseudoephedrine four times at four different pharmacies in July 2013. In
addition, he bought or was denied the drug three times in August 2013.
{¶14} Lt. Brown testified he knew that appellant is involved in a relationship with
one Maria Wooten and they have three children together. Lt. Brown also checked her
NPLEX history and learned that she made suspicious purchases of pseudoephedrine
on several occasions in this same time period at the same pharmacies in Ashtabula.
{¶15} Wooten bought or was denied pseudoephedrine eight times in July 2013.
On one date, shortly after she was denied pseudoephedrine at one pharmacy, she
attempted to buy, but was denied, the drug at another pharmacy. On another date,
one-half hour after being denied pseudoephedrine at one pharmacy, she was allowed to
buy the drug at another pharmacy.
{¶16} In August 2013, Wooten bought or was denied pseudoephedrine four
times. On August 16, the same day appellant unsuccessfully tried to buy
pseudoephedrine four times, Wooten bought the drug.
{¶17} Wooten’s NPLEX records show that she and appellant bought or
attempted to buy pseudoephedrine at the same store within minutes of each other four
times in July 2013 and four times in August 2013, indicating that each time they were in
the store together.
{¶18} Lt. Brown said that when he started to investigate appellant’s purchases of
pseudoephedrine, he did not know where he was living. As a result, he went on the
Attorney General’s website. In researching appellant, Lt. Brown saw that Deputy
Matthew Johns from the Ashtabula County Sheriff’s Office had recently tried to
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determine appellant’s address in connection with a theft appellant committed at K Mart,
which that agency was investigating.
{¶19} Lt. Brown said the theft complaint showed that on August 2, 2013, just
one-half hour before appellant bought pseudoephedrine at another pharmacy, he went
to K Mart, bought a bottle of Coleman fuel and stole a package of lithium batteries.
Video taken of appellant fleeing K Mart showed he was driving his girlfriend Wooten’s
car.
{¶20} Lt. Brown said that the K Mart theft is significant because it shows that
within one-half hour, appellant went to two different stores to buy ingredients that are
essential in manufacturing meth.
{¶21} Jeremy Pierce testified he knows appellant and they are friends. Pierce
said he was subpoenaed and was not testifying voluntarily. He said that appellant’s
girlfriend is Wooten and that appellant lives with her and their three children in an
apartment on West 19th Street in Ashtabula. Pierce said he visited appellant several
times at his apartment in July and August 2013.
{¶22} Pierce said that appellant asked him to buy pseudoephedrine for him
several times and that he bought it for him in exchange for meth, which appellant had
on him, or money. He said that appellant would take him to the pharmacies. Pierce
would pay for the pseudoephedrine with money appellant gave him for this purpose.
{¶23} Pierce said he bought pseudoephedrine for appellant several times in July
and August 2013. He said that on a few occasions, he was in the same car with his
girlfriend, Samantha McCall, when appellant drove her to pharmacies to buy
pseudoephedrine for him in exchange for meth or cash.
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{¶24} NPLEX records show that Pierce and McCall bought pseudoephedrine by
signing their own names for the drug, although, according to Pierce, these purchases
were for appellant, making them illegal.
{¶25} Pierce identified appellant on security video showing him holding Coleman
fuel while walking in K Mart on August 2, 2013, the date he stole lithium batteries from
that store, and on other security video showing appellant buying pseudoephedrine at a
pharmacy during one of the incidents referenced above.
{¶26} Ashley Pazone, a security employee at K Mart in Ashtabula testified that
on August 2, 2013, she saw appellant purchase a bottle of Coleman fuel. She also saw
him take a package of lithium batteries, tear it open, and conceal the batteries in his
pants pocket. She identified the store’s exterior video showing the license plate of the
car in which appellant escaped. She contacted the Ashtabula County Sheriff’s Office to
report the theft and appellant was charged with this offense.
{¶27} Detective George Cleveland of the Ashtabula County Sheriff’s Office,
certified in Ohio to investigate and remediate meth labs, testified that the chemicals
required to manufacture meth are ammonium nitrate crystals from instant cold packs,
pseudoephedrine tablets, Coleman fuel, lithium strips from lithium batteries, lye or acid
drain cleaner, and water. He said the lithium strips, Coleman fuel, and water create a
volatile chemical reaction, which changes pseudoephedrine into meth. A second plastic
bottle is used as a “gas generator,” which “gasses off” the Coleman fuel from the liquid
meth and turns it into a powder that can be ingested.
{¶28} Detective Cleveland testified that on September 26, 2013, he and his team
went to 1627 West 19th Street on a complaint of individuals cooking meth where
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children resided. The apartment complex is a two-story public housing project with
three attached apartments that share common walls. Each apartment has three units
and the complex has a total of nine units. Upon arrival, they went to Apartment A,
appellant’s apartment.
{¶29} Detective Cleveland knocked on the door. The interior door was open and
the screen door was closed with the screen open. The occupant, Wooten, answered
with her and appellant’s five-year-old son in tow. As the detective was knocking on the
door, he detected coming from inside the apartment a “very strong” chemical odor,
which he immediately knew to be that of a meth lab. He said that meth labs have a
distinctive smell from the combination of solvents, fuel and acid. He said, “these odors
all combine into a very specific meth lab odor.” He said he has never “smelled anything
in [his] entire life that smells like a meth lab.”
{¶30} Detective Cleveland told Wooten why they were there. He said he
smelled a meth lab in her apartment, and explained the dangers associated with meth
labs, especially for children. He told her he would need to search her apartment for the
meth lab. She pulled her child inside, closed the interior door, and yelled they would
need a search warrant. Not wanting her or her son to run back in the meth lab, the
detective forced the door open, grabbed her and her child, and brought them outside to
remove them from the danger presented by the meth lab.
{¶31} Detective Cleveland told Wooten she and her son could not enter the
hazardous environment again until they determined what stage of the chemically
reactive process the meth lab was in and that the interior was too toxic for her to go in.
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{¶32} When Detective Cleveland walked into the kitchen, he was immediately
able to locate the source of the odor as a one-pot meth lab he found in a cupboard. The
pot contained the chemicals associated with a one-pot meth lab. The bottle had
finished the active cooking stage and started to degrade from the corrosive chemicals
inside. Detective Cleveland also found a half-empty blister pack of pseudoephedrine
tablets in the cupboard next to the one-pot meth lab. Wooten was then arrested.
{¶33} Detective Cleveland also found a bottle of acid drain opener, used to
manufacture meth, in the upstairs bathroom. The detective also found a second two-
liter bottle made into a gas generator in a wooded area just off the parking lot near
appellant’s apartment.
{¶34} As Wooten was being arrested, appellant showed up. He told Detective
Cleveland that somebody must have broken into their apartment last night (i.e.,
September 25, 2013) through the attic and hid the meth lab in the kitchen cupboard.
When Detective Cleveland told him that was impossible, appellant became somber and
said, “Okay, they’re mine,” referring to the one-pot meth lab and the bottle of drain
opener found in the upstairs bathroom, both of which had been put outside the
apartment. Appellant said he found these items in the parking lot and that he picked
them up and brought them into his home so they would not explode. Thus, appellant
admitted the meth lab was brought into his apartment on September 25, 2013 and that it
belonged to him. Appellant was then arrested.
{¶35} Detective Cleveland said that, although the one-pot meth lab was no
longer cooking, it was still dangerous and volatile because the caustic and combustible
chemicals were still in it and the resulting flammable solvent vapors remained airborne.
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He said the lithium can spontaneously ignite, causing an explosion when it comes into
contact with moisture in the air. He said that when they remediated appellant’s one-pot
meth lab, there was a strong exothermic (heat) reaction that actually melted portions of
the five-gallon, heavy-duty bucket they use to remediate one pot labs.
{¶36} Susan Massaro, manager of the Ashtabula Metropolitan Housing
Authority, testified Wooten’s lease was terminated on October 1, 2013, due to meth
activity in the apartment. She said the apartment was secured until it was tested.
{¶37} Roy Wilkinson, lab technician with Safety Elements, a meth-testing
laboratory, testified that samples were taken from appellant’s apartment. Mr. Wilkinson
said these samples were tested, and the upstairs bathroom and all three bedrooms
tested positive for the presence of meth.
{¶38} The defense presented no witnesses to testify on appellant’s behalf.
Thus, the state’s evidence was undisputed.
{¶39} Following the jury trial, appellant was convicted of one count of illegal
manufacture of meth and two counts of illegal assembly or possession of chemicals for
the manufacture of meth. One count of illegal possession of chemicals involved the
Coleman fuel and lithium batteries appellant obtained from K Mart on August 2, 2013.
The second count of illegal possession of chemicals involved the pseudoephedrine
appellant bought between July 1, 2013 and July 31, 2013.
{¶40} At sentencing, the court noted that appellant was previously convicted of
theft (2003); domestic violence (2008); assault on a police officer (2008); menacing
(2009); theft (2010); aggravated theft and attempted felonious assault, for which he was
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sentenced to prison (2010); misuse of credit cards (2013); and theft and resisting arrest
(2013).
{¶41} In the instant case, the trial court sentenced appellant to six years for
illegal manufacture of meth. Further, the court sentenced appellant to two years in
prison on each count of illegal assembly or possession of chemicals for the manufacture
of meth. The court made the necessary findings for consecutive sentences under R.C.
2929.14, and ordered all sentences to run consecutively, for a total of ten years in
prison. Appellant appeals, asserting two assignments of error. Because they are
related, they are considered together. They allege:
{¶42} “[1.] There was insufficient evidence for a reasonable finder of facts to
determine that appellant illegally manufactured drugs, illegally assembled or possessed
chemicals for manufacture of drugs, and endangered children.
{¶43} “[2.] The trial court’s verdict that appellant was guilty of illegal
manufacture of drugs and illegal assembly or possession of chemicals for the
manufacture of drugs is against the manifest weight of the evidence in violation of
Article IV, Section 3, of the Ohio Constitution.”
{¶44} An appellate court reviewing the sufficiency of the evidence examines the
evidence admitted at trial and determines whether, after viewing the evidence in a light
most favorable to the state, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio
St.3d 259, 273 (1991). “On review for sufficiency, courts are to assess not whether the
state’s evidence is to be believed, but whether, if believed, the evidence against a
defendant would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390
11
(1997) (Cook, J., concurring). Whether the evidence is legally sufficient to sustain a
verdict is a question of law which we review de novo. Id. at 386.
{¶45} In contrast, a court reviewing the manifest weight observes the entire
record, weighs the evidence and all reasonable inferences, and considers the credibility
of the witnesses. Thompkins, supra, at 387. The court determines whether, in resolving
conflicts in the evidence and deciding witness credibility, the trier of fact clearly lost its
way and created such a manifest miscarriage of justice that the judgment must be
reversed and a new trial ordered. Id. The discretionary power to grant a new trial should
only be exercised in the exceptional case in which the evidence weighs heavily against
the conviction. Id. Witness credibility rests solely with the finder of fact, and an appellate
court is not permitted to substitute its judgment for that of the jury. State v. Awan, 22
Ohio St.3d 120, 123 (1986). “The jury is entitled to believe all, part, or none of the
testimony of any witness.” State v. Archibald, 11th Dist. Lake Nos. 2006-L-047 and
2006-L-207, 2007-Ohio-4966, ¶61. The role of the reviewing court is to engage in a
limited weighing of the evidence in determining whether the state properly carried its
burden of persuasion. Thompkins, supra, at 390. If the evidence is susceptible to more
than one interpretation, an appellate court must interpret it in a manner consistent with
the verdict. State v. Banks, 11th Dist. Ashtabula No. 2003-A-0118, 2005-Ohio-5286,
¶33.
{¶46} The evidence presented by the state against appellant was largely
circumstantial in nature. Circumstantial evidence is the proof of facts by direct evidence
from which a factfinder may reasonably infer the existence of other facts. State v.
Pistillo, 11th Dist. Lake No. 2003-L-183, 2004-Ohio-6333, ¶20. Circumstantial evidence
12
and direct evidence inherently possess the same probative value. Jenks, supra, at 272.
As circumstantial evidence and direct evidence are indistinguishable in this respect, “all
that is required of the jury is that it weigh all of the evidence, direct and circumstantial,
against the standard of proof beyond a reasonable doubt.” Id.
{¶47} Appellant was convicted of illegal manufacture of meth, in violation of R.C.
2925.04, and two counts of illegal assembly or possession of chemicals for the
manufacture of meth, in violation of R.C. 2925.041. R.C. 2925.04(A)(C)(4) provides,
“[n]o person shall knowingly * * * manufacture or otherwise engage in any part of the
production of [meth] * * * in the vicinity of a juvenile * * *.”
{¶48} The Sufficiency of the Evidence Regarding the Illegal Manufacturing
of Meth
{¶49} With respect to the manufacturing charge, appellant does not dispute that
there was a meth lab in his apartment. Instead, he argues the state did not present
sufficient evidence that he manufactured meth at his apartment between September 25,
2013 and September 26, 2013, as alleged in the indictment. We do not agree.
{¶50} First, appellant purchased or was denied pseudoephedrine at various
pharmacies on 25 separate occasions between July 13, 2013 and September 22, 2013.
Further, these transactions were made under suspicious circumstances. For example,
he bought or attempted to buy the drug on the same or successive days. Also, he
attempted to buy the drug on the same day after being denied the drug at another
pharmacy. Appellant also enlisted at least three others who illegally purchased
pseudoephedrine for him. In exchange for their services, appellant paid them in meth,
which he carried on him, or cash. Further, appellant purchased Coleman fuel and
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pseudoephedrine and stole lithium batteries on August 2, 2013, each of which is
required to manufacture meth.
{¶51} In addition, on September 26, 2013, Detective Cleveland went to
appellant’s apartment. While knocking at the door, he detected a distinctive odor,
which, he said, he “knew to be that of a meth lab.” He found a meth lab in a kitchen
cupboard. He also found a half-used packet of pseudoephedrine tablets beside it and a
bottle of acid drain cleaner in the upstairs bathroom. These are chemicals used to
manufacture meth. Further, although the meth lab was finished cooking, the completion
was recent enough that the lab still produced a “very strong odor.” Detective Cleveland
said the one-pot lab they found contained the chemicals necessary for the manufacture
of meth.
{¶52} Moreover, Detective Cleveland said the lab was still dangerous and
combustible and had only started to degrade from the corrosive chemicals inside. He
said that flammable solvent vapors from the meth lab were still escaping so that the lab
was still subject to explosion. In fact, he said that during their remediation of the lab, it
had an exothermic reaction, as a result of which the heat generated by the one-pot lab
was so intense, it melted portions of the five-gallon, heavy-duty bucket in which they
remediated the meth lab. Further, although at first appellant denied any connection with
the one-pot lab, he changed his story and admitted that the meth lab belonged to him
and that he knew it was still combustible. Appellant’s admitted ownership of the meth
lab while it was still giving off a very strong odor associated with meth labs provided
circumstantial evidence that it had recently been used.
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{¶53} Moreover, contrary to appellant’s argument, the state presented evidence
that appellant lived with Wooten at her West 19th Street apartment at all relevant times
and that he was at the apartment on September 26, 2013. First, Jeremy Pierce,
appellant’s friend, said that appellant lived there with his girlfriend and their three
children. Pierce knew appellant lived there because he visited appellant several times
at the apartment, each time at appellant’s invitation and each time he stayed a few
hours. In addition, appellant admitted to Detective Cleveland that he lived at this
apartment.
{¶54} In summary, appellant had been buying pseudoephedrine continually and
in suspicious circumstances from July 2013 until September 26, 2013, when he was
found with a meth lab. He also enlisted associates to buy pseudoephedrine for him. He
also bought and stole other essential ingredients of meth in this period. Detective
Cleveland smelled a very strong odor of a meth lab on entering appellant’s apartment,
indicating the one-pot meth lab had recently been used. Inside, the officers found a
meth lab, pseudoephedrine tablets, and acid drain cleaner, items needed to
manufacture meth. Further, although appellant initially denied any connection to the
meth lab, he eventually admitted that he brought it into the house on September 25,
2013, and that it belonged to him.
{¶55} In State v. Campbell, 11th Dist. Ashtabula No. 2013-A-0047, 2014-Ohio-
972, ¶10, although the meth lab at issue was no longer cooking, this court held that
appellant’s conviction of illegal manufacture of meth was supported by sufficient
evidence where, upon opening the door of appellant’s residence, the officer smelled a
15
strong odor of a meth lab inside the residence and found a meth lab and other items
used in the manufacture of meth. Id. at ¶45-48.
{¶56} Next, the state presented sufficient evidence to support his conviction of
two counts of illegal assembly or possession of chemicals for the manufacture of meth.
R.C. 2925.041(A) provides, “[n]o person shall knowingly assemble or possess one or
more chemicals that may be used to manufacture [meth] * * * with the intent to
manufacture [meth] * * *.” R.C. 2925.041(B) provides, “[i]n a prosecution under this
section, it is not necessary to allege or prove that the offender assembled or possessed
all chemicals necessary to manufacture [meth] * * *. The assembly or possession of a
single chemical that may be used in the manufacture of [meth] * * *, with the intent to
manufacture [meth] * * *, is sufficient to violate this section.”
{¶57} Further, “[a] person acts knowingly * * * 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.”
R.C. 2901.22(B).
{¶58} Moreover, “[p]urpose and intent mean the same thing.” 4 OJI 409.01. “To
do an act purposely is to do it intentionally and not accidentally.” Id. “Purpose is a
decision of the mind to do an act with a conscious objective of * * * engaging in specific
conduct.” Id. A person’s intent is known only to himself unless he expresses it to others
or indicates it by his conduct.” Id. Thus, the state must often resort to circumstantial
evidence to prove a defendant's mental state, such as knowledge or intent, because a
defendant hardly ever articulates his mental state. State v. Griffin, 1st Dist. Hamilton
Nos. C-77838, C-780002, 1979 Ohio App. LEXIS 8613, *3 (Jan. 3, 1979).
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{¶59} “Possession of drugs can be either actual or constructive.” State v.
Rollins, 3d Dist. Paulding No. 11-05-08, 2006-Ohio-1879, ¶22, citing State v. Haynes,
25 Ohio St.2d 264 (1971). Even if the contraband is not in a suspect’s “immediate
physical possession,” the suspect may still constructively possess the item, so long as
the evidence demonstrates that he or she “was able to exercise dominion and control
over the controlled substance.” State v. Lee, 11th Dist. Trumbull No. 2002-T-0168,
2004-Ohio-6954, ¶41, citing State v. Wolery, 46 Ohio St.2d 316, 329 (1976). To prove
constructive possession, it must also be shown that the person was aware of the
presence of the object. State v. Hankerson, 70 Ohio St.2d 87, 91 (1982).
{¶60} The Sufficiency of the Evidence Regarding the Illegal Assembly or
Possession of Chemicals For the Manufacture of Meth
{¶61} Appellant was convicted of two counts of illegal assembly or possession of
chemicals for the manufacture of meth. With respect to the charge of illegal possession
of Coleman fuel and lithium batteries on August 2, 2013, Ashley Panzone, K Mart
security, testified that appellant purchased Coleman fuel and stole lithium batteries by
tearing open the package and concealing the batteries in his pants pocket. He thus
knew he was in possession of these chemicals. Appellant concedes this was Ms.
Panzone’s testimony, but argues the quality of the store video made it impossible to
identify the person depicted or the fuel in his hands. However, this is a credibility issue,
which is not relevant to appellant’s sufficiency argument. Panzone’s identification of
appellant and the fuel, if believed, was sufficient to prove that he possessed this item.
Thompkins, supra.
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{¶62} With respect to the charge of illegal assembly or possession of
pseudoephedrine between July 1, 2013 and July 30, 2013, to manufacture meth,
appellant purchased pseudoephedrine three times and was denied the drug on five
other occasions in this period. He therefore knowingly possessed pseudoephedrine in
this time frame.
{¶63} Further, appellant’s intent to possess the foregoing chemicals to
manufacture meth was evidenced by his repeated efforts to obtain pseudoephedrine,
the active ingredient in meth, between July and late September 2013; his commercial
network of associates to obtain even more pseudoephedrine; his paying them for their
services in meth, which he carried on him; and his admission on September 26, 2013,
after his initial denial, that the meth lab and the acid drain cleaner found in his
apartment were his.
{¶64} Appellant argues the evidence was insufficient as to a third count of illegal
possession of chemicals and a count of endangering children. However, while
appellant was found guilty of these additional offenses, he was not sentenced for them
due to the trial court’s finding of merger. The Supreme Court of Ohio has defined a
conviction as the combined occurrence of a finding of guilty and the imposition of a
sentence. State v. Henderson, 58 Ohio St.2d 171, 389 (1979). Because appellant was
not sentenced on the third illegal possession or child-endangering charges, he was not
convicted of them. State v.Obsaint, 1st Dist. Hamilton No. C-060629, 2007-Ohio-2661,
¶24; State v. Williams, 4th Dist. Scioto No. 11CA3408, 2012-Ohio-4693, ¶54. We
therefore cannot consider them.
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{¶65} The state’s evidence, when taken together and viewed most strongly in
favor of the state, was sufficient for the jury to conclude that appellant illegally
manufactured meth between September 25, 2013 and September 26, 2013; that he was
in possession of Coleman fuel and lithium batteries for the manufacture of meth on
August 2, 2013; and that he was in possession of pseudoephedrine for the manufacture
of meth between July 1, 2013 and July 31, 2013.
{¶66} Appellant’s Manifest-Weight Challenge
{¶67} In support of appellant’s manifest-weight challenge, he does not point to
any conflicts in the evidence, which is the usual basis for such challenge. State v.
Kuscsik, 11th Dist. Ashtabula No. 2013-A-0058, 2014-Ohio-2697, ¶49. Instead, he
makes additional arguments challenging the sufficiency, rather than the weight, of the
evidence. For example, as to the manufacturing count, appellant argues that, other
than Pierce, no one ever saw appellant at Wooten’s apartment and the state did not
present any fingerprint evidence to show that meth lab and acid were connected with
him. However, Pierce’s testimony, if believed, was sufficient to prove appellant lived in
Wooten’s apartment. Thompkins, supra.
{¶68} As to the charge of illegal possession of Coleman fuel and lithium
batteries, appellant concedes that the K Mart security officer said he bought Coleman
fuel and stole lithium batteries from the store, but argues the store video was too grainy
to recognize appellant and did not show him stealing the lithium batteries. However, the
security officer’s testimony, if believed, was sufficient to show that appellant stole the
batteries.
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{¶69} Further, appellant argues that none of the various pharmacists who
testified identified him. However, the NPLEX records show that appellant made the
various purchases of pseudoephedrine. Moreover, Lt. Brown identified appellant on
surveillance video showing him buying pseudoephedrine. Finally, appellant argues the
evidence was insufficient because no meth was ever found on him. However, Pierce
said that appellant often paid him in meth, which he carried on him.
{¶70} In weighing the evidence, the jury was entitled to believe the witnesses
presented by the state and to discount appellant’s theory that he did not live at the
apartment and had no connection to the meth lab found there. After reviewing the
record, we cannot conclude the jury lost its way and created such a manifest
miscarriage of justice that appellant was entitled to a new trial. We therefore hold the
state presented sufficient, credible evidence to support appellant's conviction.
{¶71} For the reasons stated in this opinion, the assignments of error are
overruled. It is the judgment and order of this court that the judgment of the Ashtabula
County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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