State v. Clark

[Cite as State v. Clark, 2015-Ohio-5003.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, :
: Case No. 14CA20
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
DALLAS P. CLARK, :
:
Defendant-Appellant. : Released: 11/24/15
_____________________________________________________________
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 insufficient
1
Attorney Daniels was granted leave to withdraw as counsel for Appellant on July 31, 2015.
Highland App. No. 14CA20 2
evidence; 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
Highland App. No. 14CA20 3
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,
Highland App. No. 14CA20 4
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
Highland App. No. 14CA20 5
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.’ ”
Highland App. No. 14CA20 6
{¶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
Highland App. No. 14CA20 7
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
Highland App. No. 14CA20 8
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. She identified the following:
1) States’ Exhibit 1, a copy of a lab report she prepared in
Appellant’s case. Degan testified she received evidence from
Detective Swackhammer on August 21, 2014.
2) State’s Exhibit 2, a manila envelope containing a white
substance discovered to contain methamphetamine. Degan
emphasized she followed all procedures and that she could say
Highland App. No. 14CA20 9
beyond a reasonable degree of scientific certainty that the
substance in the manila envelope was methamphetamine.
3) State’s Exhibit 27, twenty white tablets containing
pseudoephedrine, which she had tested and analyzed. She
again testified beyond a reasonable degree of scientific certainty
that the tablets were pseudoephedrine.
Degan testified after she analyzed the evidence she sealed it up to be
returned. Degan also testified it is not a standard operating procedure to test
for DNA on drugs. On cross-examination, the defense emphasized that there
was no DNA link between Appellant and the methamphetamine confiscated.
{¶16} Detective Daniel Croy testified one of his duties is maintaining
the evidence room at the Highland County Sheriff’s Department. He and
Detective Swackhammer testified to the chain of custody for State’s Exhibits
2 and 27. Detective Jennifer Swackhammer testified she transported
Exhibits 2 and 27 to BCI and also returned them to the evidence room.
{¶17} Detective Vinny Antinore testified he has been employed by
the sheriff’s office for nearly three years. Primarily, his duty is to dispatch.
However, on August 13, 2014, he assisted other officers on execution of a
search warrant on Holaday Road. He identified Appellant for the jury.
Deputy Antinore testified when he first saw Appellant at the scene, he was
being escorted out of the home onto the front porch. Deputy Antinore
noticed Appellant had something in his hand he was attempting to conceal.
Highland App. No. 14CA20 10
Later, after Appellant was removed from the porch, the item recovered was a
clear bag with a white powdery substance. The bag was located on the
porch, directly under where Appellant had been seated. Deputy Antinore
identified State’s Exhibit 2 as the item that had been recovered by Sergeant
Bowen, from where Appellant had been sitting.
{¶18} On cross-examination, Deputy Antinore acknowledged he had
not consistently assisted with search warrants during his three years of
employment. He first saw Appellant with Sergeant Seaman. Deputy
Antinore testified he did not advise Sergeant Seaman he saw Appellant
holding something in his hand. Deputy Antinore further testified he never
approached Appellant and attempted to retrieve the item in his hand. After
Appellant was removed from the porch, he advised Sergeant Bowen he
observed something in Appellant’s hand. Then he walked over and saw the
item on the porch. On redirect, Deputy Antinore testified he didn’t alert
anyone about the item in Appellant’s hand immediately because he was
fearful if Appellant was aware of the information, he would throw the item
and the officers would never find it.
{¶19} The next witness was Detective Randy Sanders. Detective
Sanders testified to his experience and training identifying and dismantling
methamphetamine labs. Detective Sanders testified as to the process of
Highland App. No. 14CA20 11
manufacturing methamphetamine. He also testified he was present when the
warrant was executed at Holaday Road on August 13, 2104. He identified
Appellant.
{¶20} Detective Sanders testified Appellant had been staying at the
Holaday Road residence because he saw him there on July 23, 2014 when he
drove by. On August 13, 2014, when the warrant was executed, Detective
Sanders searched Kevin Colville’s bedroom and the garage. Inside the
garage he found numerous items inside a bag, including ammonium nitrate
pellets out of a cold pack, a torn up lithium battery, a Hamilton Beach
blender, a bottle of lye, drain cleaner, crystal drain opener. Detective
Sanders identified State’s Exhibit 20, the bag he found in the garage
containing the above-described items. Detective Sanders testified each of
the items can be used in the production of methamphetamine. Detective
Sanders testified the significance of the blender is that it is commonly used
to grind the pseudoephedrine pills. Detective Sanders identified various
other photographs of items discovered on August 13, 2014.
{¶21} On cross-examination, Detective Sanders acknowledged
Appellant was in a romantic relationship with Amanda Campanero and she
stayed at the residence as well. Detective Sanders testified he did not
observe Appellant with a bag in his hand while Appellant was sitting on the
Highland App. No. 14CA20 12
porch. He testified Amanda Campanero, Kevin Colville, Appellant, and
others were also sitting on the porch at that time. Detective Sanders further
admitted he did not see Appellant have any contact with the bag found in the
garage containing the various items. He testified he had no evidence
Appellant purchased the blender or used the blender.
{¶22} On redirect, Detective Sanders testified the house was set up to
make methamphetamine. The Hamilton Beach blender box was found in the
bedroom where Appellant and Campanero stayed.
{¶23} The State’s final witness was Detective Chris Bowen. He also
testified as to his responsibility for identifying and dismantling
methamphetamine labs. He went to the Holaday Road residence to execute
the search warrant on August 13, 2014. When he arrived he saw Kevin
Colville in the kitchen. He later checked Appellant’s bedroom. Inside the
room he found pseudoephedrine, pseudoephedrine receipts, lithium batteries
and personal property belonging to Appellant and Amanda Campanero. He
also found miscellaneous personal items. He testified he found a plastic tote
inside Appellant’s bedroom which contained coffee filters, the blender box,
and a Folger’s coffee container. He reiterated the blender was found outside
in the garage with white residue in it. He also found crushed Sudafed pills.
Detective Bowen identified the following exhibits:
Highland App. No. 14CA20 13
1) State’s Exhibit 7, a photograph taken of two blister packs
that contained pseudoephedrine laying on top of the dresser.
2) State’s Exhibit 8, a photograph of a Wal-Mart bag in the
bedroom hanging off the dresser which contained an empty box
of pseudoephedrine.
3) State’s Exhibit 10, a third receipt of pseudoephedrine
purchase, dated August 12, 2014, from Kroger in Hillsboro.
4) State’s Exhibit 11, a photograph showing an overview of the
items on the dresser; an RX bag that contained a full box of
pseudoephedrine that had six pills in it; and two blister packs
containing 20 pseudoephedrine pills. He also explained
pseudoephedrine is an active ingredient in the production of
methamphetamine.
5) State’s Exhibit 13, a photograph of items he found on top of
the dresser in the bedroom. The photograph showed lithium
batteries wrapped in a paper towel and part of a blister pack
beside the pseudoephedrine pills.
6) State’s Exhibit 14, two lithium batteries. He added lithium
metal is an active ingredient needed to produce
methamphetamine.
7) State’s Exhibit 27, two blister packs that contained twenty
pseudoephedrine pills found on top of the dresser.
{¶24} Detective Bowen testified that the items depicted in State’s
Exhibits 7, 8, 10, 11, 13, and 14 were all found in Appellant’s bedroom. He
collected the pseudoephedrine tablets, placed them in an evidence bag, and
eventually took them to an evidence locker in the sheriff’s office.
Highland App. No. 14CA20 14
{¶25} Detective Bowen testified he located two receipts inside the
bedroom.2 A receipt dated August 11, 2014 from Kroger appeared to be
inside Amanda Campanero’s purse. A receipt on top of the dresser dated
August 12, 2014 was a purchase of pseudoephedrine made by Appellant.
Bowen searched the rest of the residence and eventually went to the front
porch. Bowen also identified State’s Exhibit 27, the evidence bag with
methamphetamine from the porch which he transported to the evidence
locker on August 13, 2014.
{¶26} On cross-examination, Detective Bowen admitted that the
August 12, 2014 receipt, attached to the bag, contained the pills in an
unopened box. He acknowledged the pills had never been used to
manufacture. He also acknowledged Exhibit 27, the two blister packs
located on top of the dresser, had only nineteen pills because BCI tested one.
He testified a discarded pseudoephedrine box was inside the Wal-Mart bag
hanging on the dresser. He admitted that he did not know if the pills had
come from Amanda Campanero’s purchase or if they had been there for
months. He also testified he did not know whether the pills had been used in
the manufacture of methamphetamine.
2
Bowen testified regarding a computer program his office has in which one can track the purchase of
pseudoephedrine. The information is accessible to law enforcement. A person can log on, look up a
receipt, and see specifically who made the purchase. Bowen used this technology to track the two receipts
in Appellant’s bedroom. The name of this computer program was not correctly spelled when identified in
the transcript.
Highland App. No. 14CA20 15
{¶27} Detective Bowen further testified that no lithium had been
extracted from the batteries. He acknowledged batteries may be used for
lawful purposes and it is common for people to have batteries in their
homes. He admitted he did not know who brought the batteries to the trailer.
He admitted it was legal to purchase pseudoephedrine up to a certain amount
each month.
{¶28} Detective Bowen testified Appellant’s ID cards were on top of
the dresser. He admitted other than the receipt tracing a single Sudafed
purchase to Appellant, there was no other evidence that Appellant purchased
any of the other items, brought them to the residence, or exercised control
over them. He testified there was no active cook going on.
{¶29} Detective Bowen testified he escorted Appellant, Ms.
Campanero, and another person from the bedroom to the porch. He didn’t
observe anything in Appellant’s had. Deputy Antinore advised that he found
a baggy where Appellant was seated on the porch after he left. Detective
Bowen collected it.
{¶30} On redirect, Detective Bowen identified Exhibit 32,
Appellant’s purchase history. Appellant had purchased pseudoephedrine, or
attempted to purchase it, 15 times in 8 months. At this point, the State asked
for the relevant exhibits to be admitted and rested.
Highland App. No. 14CA20 16
{¶31} Appellant’s counsel then made a Rule 29 motion for acquittal.
Counsel argued there was no evidence of intent to manufacture
methamphetamine. Counsel pointed out the only item the State could prove
was in Appellant’s possession was the Sudafed purchased the day before.
Furthermore, the Sudafed box was completely intact and had never been
used for any purpose. Counsel argued Appellant had to have some
conscious awareness that the other items of manufacture existed and he had
to have taken some step towards completion of the manufacture of drugs.
The State responded that Appellant was near the finished product and had
receipts for the purchase. Appellant was discovered in the bedroom where
his personal belongings were and he had been residing, with all the
chemicals to make methamphetamine. The trial court overruled Appellant’s
motion.
{¶32} The defense case began with the testimony of Kevin Colville.
He testified he rented the Holaday Road residence on August 13, 2014. He
acknowledged he was currently serving a prison term after pleading to two
charges of possession of chemicals for the manufacture of
methamphetamine.
{¶33} Colville testified on August 13, 2014, he and Appellant had
worked on the transmission of Appellant’s truck. Appellant and Campanero
Highland App. No. 14CA20 17
occasionally stayed in a bedroom at Colville’s residence that was used for
storage. Other people occasionally stayed overnight in that bedroom.
Appellant had stayed more since his truck was broken.
{¶34} When the officers arrived, Colville was in the kitchen.
Appellant and Campanero were in one of the bedrooms. Colville was taken
out to the porch. Colville admitted he was the person engaged in the
manufacture of methamphetamine as his residence. He testified that
Appellant had never purchased chemicals to be used in the production of
methamphetamine. Colville denied that Appellant provided the various
items located at the residence, which included Damp-Rid, crystal Drano,
lighter fluid, and pseudoephedrine. He wrote a letter from prison to let
everyone know Appellant should not be blamed for his mistakes.
{¶35} On-cross-examination, Colville admitted he told Appellant he
would “do anything to try to help him get out of [this]because it’s not his
fault.” He admitted that he and Appellant had been communicating through
letters and family members. He denied Appellant cooked meth with him.
He admitted Appellant was at his residence on July 23, 2014 when the
officers were previously there.
{¶36} Finally, Appellant testified. He gave his residence as a location
in Peebles, Ohio. He admitted he moved around and sometimes stayed at
Highland App. No. 14CA20 18
Colville’s residence. Appellant testified on August 13, 2014, at the Holaday
Road residence, he was present with Amanda Campanero, Kevin Colville,
and 4 others. He said he had been chauffeuring people around all day,
traveling to and from a parts store, and working on his truck. When the
police arrived, he was in Mr. Colville’s daughter’s bedroom off the kitchen.
He had stayed there from time to time.
{¶37} Appellant testified Detective Bowen and another officer
brought them out. A third officer on the porch was keeping them in the area.
Five people on the porch were lined up close together. Appellant testified he
“made a scene”, accusing someone else of setting them up. Therefore, he
was taken to a patrol car.
{¶38} Appellant testified he did purchase Sudafed the day before. He
was planning to give it to his girlfriend to trade for methamphetamine. He
admitted he had a prior conviction for assembling chemicals. He admitted
he used methamphetamine on August 13, 2014. Appellant specifically
denied:
1) Bringing Damper-Rid to the residence, opening it, or using
it;
2) Bringing Sudafed to the house;
3) Possessing crystal Drano, using it, or knowing it was present
in the residence;
Highland App. No. 14CA20 19
4) Being aware of the presence of the bottle of lighter fluid;
5) Creating any solvents;
6) Manufacturing methamphetamine;
7) Participating in the use or discarding of the previous meth
lab; and,
8) Collaborating with Kevin Colville.
{¶39} On cross-examination, Appellant reiterated nobody was
making meth. He knew that Colville cooked meth and had a meth lab at his
house a few months prior. His pseudoephedrine was in the house, in
Campanero’s purse next to his ID. He testified he was aware
pseudoephedrine is a necessary item to make meth.
{¶40} As we begin our analysis, Appellant has directed us to State v.
Seldon, 8th Dist. Cuyahoga No. 98429, 2013-Ohio-819, where the defendant
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
Highland App. No. 14CA20 20
damaged or inoperable vehicles. He testified, in 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.
{¶41} 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. The
eighth district appellate 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.Highland App. No. 14CA20 21
{¶42} The eighth district court noted the only evidence of
Seldon’s intent to manufacture was:
1) His possession of the confiscated chemicals;
2) Testimony from an agent that the chemicals were used in the
red phosphorous method of cooking methamphetamine;
3) Testimony from another agent that based on the location,
quantity, and combination, the seized products could be used to
manufacture methamphetamine;
4) The fact the canine alerted to a narcotic in the truck after the
stop; and,
5) Seldon’s admission that he had used methamphetamine in
the past. Id. at 22.3
{¶43} Appellant herein argues there is no evidence of intent to
manufacture. It is true that the State’s case against Appellant herein is
largely circumstantial. It is well-established, however, that “a defendant
may be convicted solely on the basis of circumstantial evidence.” State v.
Wickersham,¶ 39, quoting State v. Nicely, 39 Ohio St.3d 147, 151, 529
N.E.2d 1236 (1988). “Circumstantial evidence and direct evidence
inherently possess the same probating value.” Jenks, paragraph one of the
syllabus. “Circumstantial evidence is defined as ‘[t]estimony not based on
3
Appellant also directs us to State v. Morlock, 20 N.E.3d 1212, 2014-Ohio- 4458, (9th Dist.) in
which the ninth district appellate court held there was insufficient evidence to convict appellant for
illegal manufacture of drugs and illegal assembly or possession of chemicals for the manufacture
of drugs. However, our review of the case reveals its precise holding is that there was insufficient
evidence to establish appellant committed the crimes on or about the date alleged.
Highland App. No. 14CA20 22
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 (5th Ed. 1979) 221.
{¶44} Furthermore, the case at bar involves circumstantial evidence
of intent. “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-Ohio-2298, ¶ 41. But
“persons are presumed to have intended the natural, reasonable and probable
consequences of their voluntary acts.” Garner at 60.
{¶45} By the end of the State’s case, the jury had heard evidence that:
1) Detective Sanders has experience in identifying and
dismantling methamphetamine labs. Appellant, Amanda
Campanero, his girlfriend, and Kevin Colville were present at
the Holaday Road residence when various items for the
Highland App. No. 14CA20 23
manufacture of methamphetamine including ammonium nitrate
pellets, a torn up lithium battery, a Hamilton Beach blender, a
bottle of lye, a bottle of drain cleaner, and crystal Drano were
located in the garage. Detective Sanders testified each of the
items can be used in the production of methamphetamine. He
also testified blenders are commonly used to grind
pseudoephedrine pills for such purpose. He testified the
residence was set up to make methamphetamine.
2) Detective Bowen also has experience in identifying and
dismantling meth labs. In Appellant’s bedroom he found
pseudoephedrine, pseudoephedrine receipts, lithium batteries,
and personal property of both Appellant and Amanda
Campanero. He also found a plastic tote containing a Hamilton
Beach blender box in the bedroom. He found lithium batteries
wrapped in a paper towel on the dresser in the bedroom. He
found two blister packs containing pseudoephedrine on top of
the dresser. He explained that pseudoephedrine and lithium
metal are active ingredients needed to produce
methamphetamine. However, no active cook was going on
when the officers arrived.
3) Detective Bowen also found two receipts in the bedroom,
one dated August 11, 2014 in Amanda Campanero’s purse, and
one on top of the dresser dated August 12, 2014. The August
12, 2014 receipt was for a purchase of pseudoephedrine made
by Appellant.
4) Exhibit 2, a white substance determined to be
methamphetamine, and Exhibit 27, twenty white tablets
containing pseudoephedrine, had been transferred to BCI for
scientific testing and the chain of custody for the evidence had
been preserved.
5) Deputy Antinore testified State’s Exhibit 2 was a white
powdery substance in a clear bag that he saw in Appellant’s
hand. He did not report the clear bag to anyone at the time for
fear that Appellant would discard it. The bag was later
recovered by Detective Bowen from the area where Appellant
had been sitting on the porch.
Highland App. No. 14CA20 24
4) Detective Sanders testified Appellant had been staying at the
Holaday Road residence because he saw him there on July 23,
2014 and again on August 13, 2014.
5) Detective Bowen testified Exhibit 27 was the
pseudoephedrine he located on top of the dresser.
6) Detective Bowen admitted other than the receipt of
Appellant’s Sudafed purchase, there was no other evidence
Appellant purchased any of the other items, brought them to the
residence, or exercised control over them.
7) Kevin Colville testified he was currently serving a prison
term for possession of chemicals for the manufacture of
methamphetamine. Appellant, Campanero, and others
occasionally stayed in the bedroom where Appellant was
located. He testified he was the person engaged in the
manufacture of methamphetamine at his residence, but
Appellant was not. He testified Appellant did not provide any
of the chemicals found there.
8) Appellant testified he was present at the Holaday Road
residence on August 13, 2014. He purchased Sudafed the day
before to give to his girlfriend. He denied manufacturing
methamphetamine. He denied bringing any of the chemicals to
the house. He admitted using methamphetamine on August 13,
2014. He admitted he had a prior conviction for assembling
chemicals. Appellant admitted he knew that Colville cooked
meth and had done so before.
{¶46} The trial court instructed appropriately as follows:
“Whether an inference is made, rests entirely with you. Now,
when considering circumstantial evidence, you may not draw
one inference from another inference; but, you may draw more
than one inference from the same facts and circumstances. In
other words, you can’t stack one inference upon another to
reach a factual conclusion.”
Highland App. No. 14CA20 25
{¶47} Based on the foregoing, we find there was circumstantial
evidence in this case supporting the conclusion that Appellant intended to
manufacture methamphetamine. It is a logical inference that Appellant was
familiar with the Holaday Road residence where various ingredients used to
make methamphetamine were located. Colville and Appellant testified he
stayed there on occasion. Detective Sanders saw Appellant there on July 23,
2014 and three weeks later on August 13, 2014.
{¶48} Appellant and Campanero were discovered by officers in a
bedroom. Although Colville testified others stayed at the residence, the
evidence demonstrates that Appellant had a significant connection to the
bedroom where he was located on August 13, 2014. His identification cards
and Campanero’s purse were found in the room. The absence of evidence
indicating that other individuals had recently stayed in the bedroom supports
the inference that the batteries and pseudoephedrine located on top of the
dresser, along with the tote bag containing the Hamilton Beach blender box,
were present under Appellant’s knowledge and control.
{¶49} Furthermore, Appellant testified he had used
methamphetamine on the date of his arrest. He purchased Sudafed the day
before for the purpose of obtaining more methamphetamine. Importantly,
Appellant testified he was aware that Colville made methamphetamine.
Highland App. No. 14CA20 26
{¶50} More importantly, Deputy Antinore’s testimony places
Appellant with the finished product in his hand, the clear baggie containing
the white powdery substance ultimately determined to be methamphetamine
by Kelsey Degan. Although Appellant denied manufacturing
methamphetamine or knowing how to manufacture methamphetamine, and
defense counsel cross-examined Deputy Antinore about why he did not
immediately report seeing the bag in Appellant’s hand, the jury was free to
believe some, all, or none of the witnesses’ testimony. The jury apparently
chose to discredit Appellant and his witness. See State v. Seal, 20 N.E.3d
392, 2015-Ohio-4167, (4th Dist.), ¶ 34. As cited above, “intent” is to be
inferred from the act and surrounding circumstances. The evidence supports
the inference that Appellant had engaged in the manufacture of
methamphetamine, and therefore possessed an “intent” to manufacture, as
the testimony was that he was seen with the finished product in his hand.
{¶51} We acknowledge that this is a close case and we reiterate that
the jury was in the best position to observe the witnesses and evaluate their
credibility. Notably, the jury sent out two questions during deliberations,
indicating they took seriously their duty to evaluate the evidence and
Highland App. No. 14CA20 27
Appellant’s arguments.4 Having reviewed the entire record, weighed the
evidence, and considered the credibility of the witnesses as it arises from the
transcript, we find a rational basis exists in the record for the jury’s decision.
We do not find this to be the exceptional case where the evidence weighs
heavily against conviction. Nor do we believe Appellant’s conviction is a
manifest miscarriage of justice. As such, we overrule Appellant’s second
assignment of error and affirm the judgment of the trial court.
ASSIGNMENT OF ERROR THREE
A. STANDARD OF REVIEW
{¶52} 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-Ohio-502, at ¶ 33, quoting State v. Jenks at paragraph two of the
4
However, we reiterate, as in Wickersham, supra, at Fn. 6, that “[T]his is not to suggest that a defendant’s
conviction is unsustainable if a jury does not submit a question to the trial court during deliberations.”
Highland App. No. 14CA20 28
syllabus. See, also, Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781(1979).
{¶53} 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
{¶54} Appellant next argues his conviction, pursuant to R.C.
2925.041was based on insufficient evidence. 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.
Highland App. No. 14CA20 29
Summit No. 22435, 2005-Ohio-4942, ¶ 9, quoting State v. Roberts, 9th Dist.
Lorain No. 96CA006462 (Sept. 17, 1997). See, State v. Chandler, 4th Dist.
Highland No. 14CA11, 2014-Ohio-5125, ¶12. In the case sub judice,
having found no merit to Appellant’s argument that his conviction is against
the manifest weight of the evidence, we further find it is supported by
sufficient evidence. As such, we overrule Appellant’s third assignment of
error and affirm the judgment of the trial court.
ASSIGNMENT OF ERROR ONE
A. STANDARD OF REVIEW
{¶55} The standard of review for a Crim.R. 29(A) motion is generally
the same as a challenge to the sufficiency of the evidence. Hollis, supra, at ¶
19. See State v. Hairston, 4th Dist. Scioto No. 06CA3081, 2007-Ohio-3880,
2007 WL 2181535, at ¶ 16; State v. Brooker, 170 Ohio App.3d 570, 2007-
Ohio-588, 868 N.E.2d 683, at ¶8. Appellate courts must determine whether
the evidence adduced at trial, if believed, supports a finding of guilt beyond
a reasonable doubt. See State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-
Ohio-52, 678 N.E.2d 541; State v. Jenkins, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991).
B. LEGAL ANALYSIS
{¶56} Here Appellant contends the trial court erred by denying his
Highland App. No. 14CA20 30
Rule 29 motion for acquittal, against arguing the State failed to prove intent.
We have set forth above the analysis for the evaluation of a Crim.R. 29
motion is the same as the “sufficiency-of-the-evidence” analysis. We have
found Appellant’s conviction was supported by the manifest weight of the
evidence, and elaborated that the manifest weight of the evidence necessarily
includes a finding that sufficient evidence supports the conviction. As such,
we need not engage in further analysis under this assignment of error.
Appellant’s argument hereunder is overruled. The judgment of the trial
court is affirmed.
ASSIGNMENT OF ERROR FOUR
A. STANDARD OF REVIEW
{¶57} In State v. Pulliam, 4th Dist. Scioto No. 14CA3609, 2015-
Ohio-759, ¶ 5, see State v. Brewer, 2014-Ohio-1903, 11 N.E.3d 317, we
recently held that when reviewing felony sentences, we apply the standard of
review set forth in R.C. 2953.08(G)(2). Brewer at ¶ 33 (“we join the
growing number of appellate districts that have abandoned the Kalish
plurality's two step abuse-of-discretion standard of review; when the General
Assembly reenacted R.C. 2953.08(G)(2), it expressly stated ‘[t]he appellate
court's standard of review is not whether the sentencing court abused its
discretion’ ”). See also State v. Graham, 4th Dist. Highland No. 13CA11,
Highland App. No. 14CA20 31
2014-Ohio-3149, ¶ 31. R.C. 2953.08(G)(2) specifies that an appellate court
may increase, reduce, modify, or vacate and remand a challenged felony
sentence if the court clearly and convincingly finds either that “the record
does not support the sentencing court's findings” under the specified
statutory provisions or “the sentence is otherwise contrary to law.”
B. LEGAL ANALYSIS
{¶58} Appellant argues the general felony sentencing provision of
R.C. 2929.14(A)(3)(a), revised most recently by House Bill 234, effective
March 23, 2015, conflicts with the internal sentencing provision of R.C.
2929.041. On his conviction for manufacture of drugs, Appellant was
sentenced to a five-year mandatory sentence, in accordance with the
provision of R.C. 2929.041 which states:
“Whoever violates this section is guilty of illegal assembly or
possession of chemicals for the manufacture of drugs. Except
as otherwise provided in this division, illegal assembly or
possession of chemicals for the manufacture of drugs is a
felony of the third degree, and, except as otherwise provided in
division (C)(1) or (2) of this section, division (C) of section
2929.13 of the Revised Code applies in determining whether to
impose a prison term on the offender. If the offense was
committed in the vicinity of a juvenile or in the vicinity of a
school, illegal assembly or possession of chemicals for the
manufacture of drugs is a felony of the second degree, and,
except as otherwise provided in division (C)(1) or (2) of this
section, division (C) of section 2929.13 of the Revised Code
applies in determining whether to impose a prison term on the
offender. If the violation of division (A) of this section is a
felony of the third degree under this division and if the
Highland App. No. 14CA20 32
chemical or chemicals assembled or possessed in violation of
division (A) of this section may be used to manufacture
methamphetamine, there either is a presumption for a prison
term for the offense or the court shall impose a mandatory
prison term on the offender, determined as follows:
(1) Except as otherwise provided in this division, there is a
presumption for a prison term for the offense. If the offender
two or more times previously has been convicted of or pleaded
guilty to a felony drug abuse offense, except as otherwise
provided in this division, the court shall impose as a mandatory
prison term one of the prison terms prescribed for a felony of
the third degree that is not less than two years. If the offender
two or more times previously has been convicted of or pleaded
guilty to a felony drug abuse offense and if at least one of those
previous convictions or guilty pleas was to a violation of
division (A) of this section, a violation of division (B)(6) of
section 2919.22 of the Revised Code, or a violation of division
(A) of section 2925.04 of the Revised Code, the court shall
impose as a mandatory prison term one of the prison terms
prescribed for a felony of the third degree that is not less than
five years.”
Pursuant to the above statute, Appellant was sentenced to a five-year
mandatory prison term due to having two prior convictions for felony drug
abuse offenses. However, recently revised R.C. 2929.14 (A)(3) provides:
“(a) For a felony of the third degree that is a violation of section
2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the
Revised Code or that is a violation of section 2911.02 or
2911.12 of the Revised Code if the offender previously has
been convicted of or pleaded guilty in two or more separate
proceedings to two or more violations of section 2911.01,
2911.02, 2911.11, or 2911.12 of the Revised Code, the prison
term shall be twelve, eighteen, twenty-four, thirty, thirty-six,
forty-two, forty-eight, fifty-four, or sixty months.
Highland App. No. 14CA20 33
(b) For a felony of the third degree that is not an offense for
which division (A)(3)(a) of this section applies, the prison term
shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six
months.”
{¶59} Appellant argues R.C. 2929.14 does not list R.C. 2925.041 as
an offense excluded from the thirty-six month range. As such, the two
statutes are in conflict. Appellant urges that statutes relating to the same
general subject matter must be read in pari materia and viewed in a manner
to carry out the legislative intent of the sections.
{¶60} Appellee responds that there is no conflict between the statutes.
Appellee cites R.C. 2929.13(C), which states:
“Except as provided in division (D), (E), (F), or (G) of this
section, in determining whether to impose a prison term as a
sanction for a felony of the third degree or a felony drug offense
that is a violation of a provision of Chapter 2925 of the Revised
Code and that is specified as being subject to this division for
purposes of sentencing, the sentencing court shall comply with
the purposes and principles of sentencing under section 2929.11
of the Revised Code and with section 2929.12 of the Revised
Code.”
Appellee points out that none of the language contained in subsections (D,
(E), (F), and (G) of R.C. 2929.13 specifically refer to R.C. 2925.041 or
2929.14. As such, the court can assume the intent is for R.C. 2925.041 to be
a “stand alone” offense.
{¶61} The Twelfth District Court of Appeals recently considered the
argument that the statutes are in conflict in State v. Young, 31 N.E.3d 178,
Highland App. No. 14CA20 34
2015-Ohio-1347. The Twelfth District Appellate Court pointed out the
statutory provisions listed in R.C. 2929.14(A)(3)(a) refer to certain vehicular
offenses, certain sexual offenses, and robbery and burglary. Importantly,
illegal assembly of chemicals for the manufacture of drugs is not an offense
listed in R.C. 2929.14(A)(3)(a). Thus, pursuant to R.C. 2929.14(A)(3)(a)
and (b), appellant's maximum sentence for violating R.C. 2925.041 would be
36 months in prison. As here, the record showed that Young was previously
convicted of “illegal manufacture of drugs, aggravated possession of drugs”
and had a prior conviction for illegal assembly of chemicals for the
manufacture of drugs under R.C. 2925.041(A). As a result, pursuant to R.C.
2925.041(C)(1), appellant's mandatory sentence for violating R.C. 2925.041
would be 60 months (5 years) in prison.
{¶62} The Young court observed in State v. Shaffer, 9th Dist. Medina
Nos. 12CA0071-M, 12CA0077-2014-Ohio-2461, the decision cited by the
state, that:
“[T]he defendant entered a plea of no contest to illegal
assembly of chemicals for the manufacture of drugs and was
sentenced to five years in prison under R.C. 2925.041(C)(1).
The Ninth Appellate District upheld the sentence on the ground
that ‘the General Assembly intended R.C. 2925.041(C)(1) to be
a specific exception to the general felony sentencing scheme set
forth in R.C. 2929.14,’ and thus, R.C. 2925.041(C)(1) prevailed
over R.C. 2929.14.” Id. at ¶42.
{¶63} The Shaffer court held in its decision:
Highland App. No. 14CA20 35
“Here, similar to the facts in Sturgill, Ms. Shaffer's sentence for
a felony of the third degree was increased from thirty-six
months to five-years because R.C. 2925.041(C)(1) specifically
mandates imprisonment of ‘not less than five-years’ if certain
conditions precedent are met. Additionally, as indicated above,
both R.C. 2929.14 and R.C. 2925.041 were amended by H.B.
86 on September 30, 2011. As a result, we conclude that if the
General Assembly wished to amend R.C. 2925.041(C)(1), in
order to remove the penalty enhancement language, it would
have done so at that time. Instead, the General Assembly
amended R.C. 2925.041(C)(1) to state that the court shall
impose as a mandatory prison term one of the prison terms
prescribed for a felony of the third degree that is not less than
five years if ‘two or more times previously [the offender] has
been convicted of or pleaded guilty to a felony drug abuse
offense and if at least one of those previous convictions or
guilty pleas was to a violation of division (A) of this section, a
violation of division (B)(6) of section 2919.22 of the Revised
Code, or a violation of division (A) of section 2925.04 of the
Revised Code[.]’ CA0077-M (Emphasis added.) (Italicized
words indicate changes made to R.C. 2925.041(C)(1) in H.B.
86.) Shaffer, at ¶ 14.”
{¶64} The Young court noted in addressing the conflict between the
statutes and seeking guidance with this matter, the Shaffer court relied on the
12th district’s decision in State v. Sturgill, 12th Dist. Clermont Nos.
CA2013-01-002 and CA2013-01-003, 2013-Ohio-4648. However, on
March 23, 2015, the Twelfth District Appellate Court explicitly overruled
Sturgill and its progeny in State v. Burkhead, 12th Dist. Butler No. CA2014–
02–028, 2015-Ohio-1085. The holding and analysis in Sturgill was no
longer good law in the 12th appellate district.
Highland App. No. 14CA20 36
{¶65} The Young court also considered the arguments made in State
v. Dunning, 12th Dist. Warren Nos. CA2013-05-048, CA2013-06-58, 2014-
Ohio-253, cited by the appellant. In Dunning, the defendant was first
sentenced to five years in prison following his 2013 guilty plea to illegal
assembly of chemicals for the manufacture of drugs. While his appeal was
pending, the trial court resentenced the defendant to three years in prison.
On appeal, this court addressed sua sponte whether the trial court had
jurisdiction to resentence the defendant while his original appeal was still
pending, and held that the trial court did not. Thereafter, the Twelfth
District Court held:
“That said, issues remain regarding the trial court's original
decision sentencing Dunning to an aggregate five-year prison
term. After a thorough review of the record, we find the trial
court erred by sentencing Dunning to serve five years in prison
resulting from his guilty plea *189 to illegal possession or
assembly of chemicals for the manufacture of drugs in violation
of R.C. 2925.041(A), a third-degree felony. At the time of his
original sentencing hearing, the maximum prison sentence for a
third-degree felony was three years in prison. Therefore, the
trial court's original sentencing decision in Case No. CA2013-
05-048 is reversed and this matter is remanded for the sole
purpose of resentencing Dunning according to law. Dunning's
conviction is affirmed in all other respects.” Id. at ¶ 11.5
{¶66} The Young court held:
5
The defendant in Dunning was sentenced in 2013. Thus, the two statutory provisions at issue in the case
at bar, to wit, R.C. 2929.14 and 2925.041(C)(1) as revised by H.B. 86, were also applicable in Dunning.
Young, supra, at ¶ 45.
Highland App. No. 14CA20 37
“R.C. 2925.041(C)(1) sets forth a specific sentencing scheme
for third-degree felonies involving felony drug abuse offenses
and is thus specific, rather than general, in nature. See Shaffer,
supra, at ¶ 14-15. Likewise, R.C. 2929.14(A)(3), which sets
forth a specific, two-tiered sentencing scheme for third-degree
felonies, is specific, rather than general, in nature. See State v.
Owen, 11th Dist., 2013-Ohio-2824, 995 N.E.2d 911, ¶ 27-28.
The two statutes are clearly in conflict since the maximum
sentence authorized for a third-degree felony drug offense
under R.C. 2925.041(C)(1) is 60 months, while the maximum
sentence allowed for third-degree felonies, other than those
listed in R.C. 2929.14(A)(3)(a), is 36 months. Yet, R.C.
2925.041(C)(1) also incorporates by reference R.C. 2929.14
when the former states, “the court shall impose as a mandatory
prison term one of the prison terms prescribed for a felony of
the third degree * * *.” Young, at ¶43.
{¶67} Young also referenced Owen, supra, in which the Eleventh
Appellate District emphasized the fact that one of the overriding purposes of
felony sentencing under H.B. 86 is to “ ‘punish the offender using the
minimum sanctions that the court determines accomplish those purposes.’ ”
Owen at ¶ 30, quoting R.C. 2929.11. The Owen court found that the
foregoing language “evinces the legislative intent that sentencing courts are
to use the minimum sanctions available to accomplish the purposes of felony
sentencing.” Young, at ¶4. Furthermore, Young recognized the “rule of
lenity” which applies where there is an ambiguity in a statute or a conflict
between statutes. State v. Sheets, 12th Dist. Clermont No. CA2006-04-032,
2007-Ohio-1799, ¶ 29. “The rule of lenity is codified in R.C. 2901.04(A)
which provides in relevant part that “sections of the Revised Code defining
Highland App. No. 14CA20 38
offenses or penalties shall be strictly construed against the state, and
liberally construed in favor of the accused.” Young, at ¶ 48. Under the rule
of lenity, “a court will not interpret a criminal statute so as to increase the
penalty it imposes on a defendant where the intended scope of the statute is
ambiguous.” Sheets at ¶ 28.
{¶68} The Young court concluded as follows:
“In light of our decisions in Dunning and Burkhead, the fact
this court overruled Sturgill and its progeny, and the rule of
lenity, we find that appellant should have been sentenced under
R.C. 2929.14(A)(3)(b), and not under R.C. 2925.041(C)(1).
The trial court's decision to sentence appellant to 60 months in
prison under R.C. 2925.041(C)(1) is therefore clearly and
convincingly contrary to law and appellant's sentence must be
vacated. See R.C. 2953.08(G)(2). On remand, the trial court
should exercise its discretion in resentencing appellant to one of
the prison terms set forth in R.C. 2929.14(A)(3)(b) up to 36
months in prison.” Id. at ¶ 49.
{¶69} We have located no other cases beyond those cited which
address the conflict issue raised by Appellant. Based on the persuasive
reasoning set forth in Young, we find Appellant’s fourth assignment of error
has merit. We find his five-year mandatory sentence under R.C.
2925.041(C) is clearly and convincingly contrary to law. As such, we
remand the matter for resentencing in accordance with this law as set forth in
R.C. 2929.14(A)(3)(b).
Highland App. No. 14CA20 39
JUDGMENT AFFIRMED IN
PART, REVERSED IN PART,
AND CAUSE REMANDED
FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS
OPINION.
Highland App. No. 14CA20 40
Harsha, J., concurring in part and dissenting in part:
{¶70} I respectfully dissent from the majority’s disposition of the
fourth assignment of error and would affirm the trial court’s judgment and
sentence in toto.
{¶71} To the extent that Clark contends R.C. 2929.14(A)(3) should
prevail over R.C. 2929.041(C)(1) because the former has been amended
more recently that the latter, he is mistaken. Although R.C. 2929.14 has
been more recently amended, those changes did not affect R.C.
2929.14(A)(3). As the court in State v. Young, supra, noted in footnote 4,
“The 2012 amendment did not affect or modify R.C. 2929.14(A)(3).”
Neither did the 2015 amendments found in HB 234, effective March 23,
2015, which dealt with firearms legislation. The only change to R.C.
2929.14(A)(3) was limited to striking the word “silencer” and the
substitution of “suppressor” in its place.
{¶72} Thus both the relevant sections of R.C. 2929.14(A)(3) and R.C.
2929.041(C) were adopted at the same time in 2011 in HB 96. There is no
basis for claiming R.C. 2929.14(A)(3) prevails because it was adopted later
than R.C. 2929.041(C).
{¶73} And as Clark points out in his brief at page 25, R.C. 2929.14 is
a “general felony sentencing provision,” especially when compared to R.C.
Highland App. No. 14CA20 41
2929.041(C). Thus, the provisions of R.C. 2929.041(C), which is a more
specific pro-statute, should prevail.
{¶74} Based upon those facts and the rationale expressed by the
Ninth Appellate District in Shaffer, supra, I would affirm the trial court’s
judgment of conviction and its sentence in its entirety.
Highland App. No. 14CA20 42
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. Appellant and Appellee shall split the costs.
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, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Part and Dissents in Part with Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland,
Administrative 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.