State v. Clark

2015 Ohio 5003

STATE OF OHIO, Plaintiff-Appellee, v. DALLAS P. CLARK, Defendant-Appellant.

Case No. 14CA20

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY

November 24, 2015

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Susan M. Zurface Daniels, Hillsboro, Ohio, for Appellant.¹

Anneka Collins, Highland County Prosecuting Attorney, and James Roeder, Assistant Prosecuting Attorney, Hillsboro, Ohio, for Appellee.

McFarland, A.J.

{¶1} Dallas P. Clark appeals his conviction in the Highland 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, Clark contends: (1) the trial court erred in denying his Rule 29 motion when the State presented no evidence of "intent to manufacture" methamphetamine; (2) his conviction was against the manifest weight of the evidence; (3) his conviction was based on insufficientevidence; and (4) his five year mandatory sentence pursuant to R.C. 2925.041 was improper and invalid as a matter of law. Upon review, we find no merit to Appellant's first three assignments of error. However, his fourth assignment of error regarding his five-year mandatory sentence has merit. Accordingly, we overrule Appellant's first three assignments of error and remand the matter for resentencing in accordance with current Ohio law.

FACTS

{¶2} On September 9, 2014, Appellant Dallas P. Clark 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), a felony of the third degree. The indictment arose from activities which occurred on or about August 13, 2014 when officers executed a search warrant at 6172 Holaday Road in Highland County, and found various items used in the production of methamphetamine. Kevin Colville lived at the address. Appellant and Amanda Campanero, with whom he was romantically involved, also stayed there on occasion. Appellant, Colville, and Campanero were charged and arrested.

{¶3} Appellant was tried on the sole count on November 13, 2014. The State presented testimony from the following individuals: Kelsey Degan, a forensic scientist employed by the Ohio Bureau of Criminal Investigation (BCI); Detective Daniel Croy of the Highland County Sheriff's Department; Detective Jennifer Swackhammer, Deputy Vinny Antinore, Detective Randy Sanders, and Detective Chris Bowen, all of the sheriff's department. Co-defendant Kevin Colville testified on behalf of Appellant. Appellant also testified in his own defense.

{¶4} In closing, the State argued that circumstantial evidence showed Appellant possessed pseudoephedrine and lithium, necessary chemicals in the manufacture of drugs, and that he possessed the items with the intent to manufacture drugs. The State pointed out Appellant purchased pseudoephedrine at least twice a month on average in the year 2014. The State emphasized Appellant knew Colville cooked methamphetamine. The State noted the room in which Appellant was located contained a majority of the items found for the manufacture of drugs. At the conclusion of the one-day trial, the jury returned a verdict of guilty.

{¶5} This timely appeal followed. Where relevant, additional facts will be related below.

ASSIGNMENTS OF ERROR

"I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION PURSUANT TO CRIM.R. 29(A) WHEN THE STATE PRESENTED NO EVIDENCE OF "INTENT TO MANUFACTURE" METHAMPHETAMINE,

WHICH IS AN ESSENTIAL ELEMENT OF THE CRIME OF ILLEGAL ASSEMBLY OR POSSESSION OF CHEMICALS FOR THE MANUFACTURE OF METHAMPHETAMINE PURSUANT TO R.C. 2925.041 OF THE OHIO REVISED CODE.

II. APPELLANT'S CONVICTION FOR ILLEGAL ASSEMBLY OR POSSESSION OF CHEMICALS FOR THE MANUFACTURE OF METHAMPHETAMINE PURSUANT TO O.R.C. 2925.041 WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

III. APPELLANT'S CONVICTION FOR ILLEGAL ASSEMBLY OR POSSESSION OF CHEMICALS FOR THE MANUFACTURE OF METHAMPHETAMINE PURSUANT TO O.R.C. 2925.O41 WAS BASED ON INSUFFICIENT EVIDENCE.

IV. THE SENTENCING PROVISIONS OF 2925.041 OF THE OHIO REVISED CODE, WHEN READ IN PARI MATERIA WITH THE 2929.14 ARE IN CONFLICT WITH EACH OTHER, RENDERING A FIVE (5) YEAR MANDATORY SENTENCE PURSUANT TO 2925.041 IMPROPER AND INVALID AS A MATTER OF LAW."

{¶6} The arguments made in the first three assignments of error are interrelated. For ease of analysis, we begin with consideration of Appellant's Assignment of Error Two. Appellant argues his conviction was against the manifest weight of the evidence.

ASSIGNMENT OF ERROR TWO

A. STANDARD OF REVIEW

{¶7} 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 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.' "

{¶8} 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.").

{¶9} 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).

B. LEGAL ANALYSIS

{¶10} Appellant was 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."

{¶11} R.C. 2925.04 states:

"(A) No person shall knowingly cultivate marihuana or knowingly manufacture or otherwise engage in any part of the production of a controlled substance."

{¶12} Appellant contends the State failed to present any evidence of "intent to manufacture." Appellant points out the "intent to manufacture a controlled substance" is not defined in the Ohio Revised Code, and directs us to cases from the Eighth, Ninth, and Eleventh appellate districts which have analyzed what constitutes proof of this particular element.

{¶13} Appellee responds that the facts and testimony of various witnesses provide evidence from which a reasonable juror could infer Appellant held the intent to manufacture. Appellee points out Appellant was present in a residence where a search warrant had recently been executed for illegal manufacture of methamphetamine. The prior warrant was executed within a month of Appellant's own arrest, at the same house, for the same crime. Appellee points out the home and property contained various other items for the production of methamphetamine. Appellee also points to Appellant's history of purchasing an inordinate amount of pseudoephedrine. Finally, Appellee emphasizes the room in which Appellant and his girlfriend stayed was found to have many of the items also offered as evidence for the production of methamphetamine.

{¶14} We begin by noting that R.C. 2925.041(B) further 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."

{¶15} Appellant's trial began with testimony from Kelsey Degan of BCI. The trial court declared her to be an expert in substance identification and measuring. S...