[Cite as State v. Shindeldecker, 2016-Ohio-264.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             PREBLE COUNTY




STATE OF OHIO,                                     :
                                                         CASE NO. CA2015-06-014
        Plaintiff-Appellee,                        :
                                                               OPINION
                                                   :            1/25/2016
    - vs -
                                                   :

DAVID H. SHINDELDECKER,                            :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                            Case No. 14CR11683



Martin P. Votel, Preble County Prosecuting Attorney, Gractia Manning, Preble County
Courthouse, 101 East Main Street, Eaton, Ohio 45320,, for plaintiff-appellee

Kim Schneider, P.O. Box 18104, Fairfield, Ohio 45018, for defendant-appellant



        M. POWELL, P.J.

        {¶ 1} Defendant-appellant, David Shindeldecker, appeals his conviction in the Preble

County Court of Common Pleas for various offenses related to the manufacture, assembly,

and possession of methamphetamine. For the reasons detailed below, we affirm.

        {¶ 2} Deputies with the Preble County Sheriff's Office arrested Shindeldecker after

observing him operating a vehicle while on a suspended license. During a search incident to

arrest, Deputy Shane Hatfield located a clear plastic container of methamphetamine in
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Shindeldecker's jacket, as well as several packages of pseudoephedrine located in

Shindeldecker's vehicle.     Authorities also discovered in Shindeldecker's jacket a soft,

"grenade shaped" wallet containing methamphetamine while he was being booked into the

county jail.

       {¶ 3} The next day, Deputy Hatfield and Deputy Robert Schneider went to the

residence Shindeldecker shared with his mother and searched the property. Upon obtaining

consent to search the garage, the deputies discovered a methamphetamine lab. The

methamphetamine lab was located approximately 70 feet from the rear of the residence

where Shindeldecker's children would visit every other weekend.

       {¶ 4} Shindeldecker was subsequently charged with (1) illegal manufacture of drugs,

in violation of R.C. 2925.04(A), a first-degree felony; (2) illegal assembly or possession of

chemicals for the manufacture of drugs, in violation of R.C. 2925.041, a second-degree

felony; (3) endangering children, in violation of R.C. 2919.022(B)(6), a third-degree felony; (4)

illegal conveyance of weapons or prohibited items onto grounds of specified government

facility, in violation of R.C. 2921.36(A)(2), a third-degree felony; (5) aggravated possession of

drugs, in violation of R.C. 2925.11, a third-degree felony; and (6) a drug paraphernalia

offense, in violation of R.C. 2925.14, a fourth-degree misdemeanor. The case proceeded to

a jury trial. However, 12 days prior to the trial date, Shindeldecker requested a substitution of

counsel. The trial court denied Shindeldecker's request and the matter proceeded as

scheduled.

       {¶ 5} The state presented the testimony of the arresting officers who testified that

they discovered methamphetamine and pseudoephedrine pills in Shindeldecker's vehicle,

which contain chemicals commonly used in the manufacture of methamphetamine. In

addition, Deputy Hatfield and Deputy Schneider testified about the methamphetamine lab

that was discovered at Shindeldecker's residence. Deputy Schneider further explained the
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process used in the manufacture of methamphetamine and described in detail the various

items located in the garage, including the chemicals and reaction jars in various stages of the

methamphetamine production process.

       {¶ 6} In addition to this testimony, Deputy Paul Plaugher, an evidence technician,

testified about the hazardous evidence that was collected during the investigation and the

need to safely dispose of those items due to the danger of combustion. Deputy Plaugher

also testified that he obtained fingerprints from the reactions jars. A lab technician later

confirmed that Shindeldecker's prints were on items contained in the methamphetamine lab.

       {¶ 7} The state next presented the testimony of Agent Dwight Aspacher from the

Ohio Bureau of Criminal Identification and Investigation. Agent Aspacher testified about the

manufacturing process for methamphetamine and explained that the manufacturing process

found in Shindeldecker's garage had been taking place for several months.

       {¶ 8} Shindeldecker's mother, Gloria Wills, testified that Shindeldecker has been

living with her for several years and that she does not use the garage. Wills testified that

Shindeldecker primarily used the garage for painting and working on cars. In addition,

Stephanie Smith testified that she has two minor children with Shindeldecker, and they were

with Shindeldecker every other weekend during the time period that the methamphetamine

lab would have been in operation.

       {¶ 9} Shindeldecker testified in his own defense.              During his testimony,

Shindeldecker admitted that he was aware of the presence of many of the items law

enforcement discovered in the garage, but denied any knowledge about the presence of the

methamphetamine lab. Rather, Shindeldecker claimed that there were at least two other

individuals who were in the garage during the relevant time. However, Shindeldecker

admitted that he worked in the garage where the methamphetamine lab was located, and

that it was possible that he had purchased or attempted to purchase pseudoephedrine during
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the relevant time period.

       {¶ 10} The jury returned a guilty verdict as to all counts alleged in the indictment. The

trial court imposed a prison term of five years for the illegal manufacture of drugs, three years

for endangering children, and three years for the illegal conveyance of prohibited items.

Those counts were then ordered to run concurrently to each other and the remaining counts

were ordered merged for purposes of sentencing. Shindeldecker now appeals his conviction

and sentence, raising four assignments of error for review.

       {¶ 11} Assignment of Error No. 1:

       {¶ 12} THE FINDING OF GUILT ON ALL COUNTS WAS NOT SUPPORTED BY

SUFFICIENT, CREDIBLE EVIDENCE AND WAS CONTRARY TO THE MANIFEST WEIGHT

OF THE EVIDENCE.

       {¶ 13} In his first assignment of error, Shindeldecker argues that his convictions are

not supported by sufficient evidence and are against the manifest weight of the evidence.

       {¶ 14} At the outset, we note that "[t]he legal concepts of sufficiency of the evidence

and weight of the evidence are both quantitatively and qualitatively different." State v.

Thompkins, 78 Ohio St.3d 380, 386 (1987); State v. Graves, 12th Dist. Clermont No.

CA2015-03-022, 2015-Ohio-3936, ¶ 17. Nevertheless, although the two concepts are

different, a finding that a conviction is supported by the manifest weight of the evidence is

also dispositive of the issue of sufficiency. State v. Jones, 12th Dist. Butler No. CA2012-03-

049, 2013-Ohio-150, ¶ 19. Therefore, "[b]ecause sufficiency is required to take a case to the

jury, a finding that a conviction is supported by the weight of the evidence must necessarily

include a finding of sufficiency." State v. Hart, 12th Dist. Brown No. CA2011-03-008, 2012-

Ohio-1896, ¶ 43.

       {¶ 15} A manifest weight challenge concerns the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.
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State v. Vunda, 12th Dist. Butler Nos. CA2012-07-130 and CA2013-07-113, 2014-Ohio-3449,

¶ 34. To determine whether a conviction is against the manifest weight of the evidence, the

reviewing court must look at the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether in resolving the

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. State v.

Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34.

       {¶ 16} While appellate review includes the responsibility to consider the credibility of

witnesses and weight given to the evidence, "these issues are primarily matters for the trier of

fact to decide." State v. Schuster, 12th Dist. Clermont Nos. CA2015-05-040 and CA2015-05-

041, 2015-Ohio-4818, ¶ 54. Therefore, an appellate court will overturn a conviction due to

the manifest weight of the evidence only in extraordinary circumstances to correct a manifest

miscarriage of justice, and only when the evidence presented at trial weighs heavily in favor

of acquittal. State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81.

       {¶ 17} In the present case, Shindeldecker challenges his convictions for six counts

related to his involvement in the manufacture, assembly, and possession of

methamphetamine. In so doing, we note that there is no dispute in the record that the

garage in the back of Shindeldecker's residence contained a methamphetamine lab. There

is also no dispute that Shindeldecker's children were present at his home while the

methamphetamine lab was in operation, which is relevant to his conviction for endangering

children.

       {¶ 18} Shindeldecker asserts that he had no knowledge that his jacket, or the

"grenade shaped" wallet on his person contained methamphetamine. Shindeldecker's denial

of any knowledge that he possessed methamphetamine was a matter that the jury

considered, and ultimately rejected. Again, credibility determinations are primarily matters for
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the trier of fact to decide. Schuster at ¶ 54. The evidence presented at trial supports the

jury's determination that Shindeldecker had actual possession of the methamphetamine

found on his person.

       {¶ 19} Next, Shindeldecker argues the state failed to present evidence that he

participated in or was observed in the manufacture of methamphetamine. However, we find

there was ample testimony to support these convictions. The evidence established that

Shindeldecker lived in a residence located on property with a garage housing an active

methamphetamine lab. Shindeldecker had been in the garage on multiple occasions and his

fingerprints were located on the instrumentalities used in the methamphetamine production.

During his initial arrest, police officers located pseudoephedrine tablets in Shindeldecker's

vehicle, which are used in the manufacture of methamphetamine. Furthermore, although he

denied involvement in the methamphetamine operation, Shindeldecker acknowledged the

existence of "some things" in the garage, but claimed to be unaware of the exact nature of

the operation.

       {¶ 20} There was ample testimony to support the jury's finding. See, e.g., State v.

Bowling, 12th Dist. Butler No. CA2013-08-159, 2014-Ohio-1690; State v. Wyatt, 12th Dist.

Preble No. CA2013-06-005, 2014-Ohio-3009. The jury heard all of the testimony, considered

the evidence, and found the state's theory of the case and its witnesses credible. As the jury

was in the best position to weigh the evidence and assess the credibility of the witnesses, we

will not disturb its finding on appeal. Shindeldecker's convictions were supported by sufficient

evidence and were not rendered against the manifest weight of the evidence. We overrule

Shindeldecker's first assignment of error.

       {¶ 21} Assignment of Error No. 2:

       {¶ 22} THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S REQUEST

FOR NEW COUNSEL PRIOR TO TRIAL.
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       {¶ 23} In his second assignment of error, Shindeldecker argues the trial court erred by

denying his request for new counsel prior to trial. "An indigent defendant has no right to have

a particular attorney represent him and therefore must demonstrate 'good cause' to warrant

substitution of counsel." State v. Liso, 12th Dist. Brown Nos. CA2013-11-013 and CA2013-

11-016, 2014-Ohio-3549, ¶ 7, quoting State v. Cowans, 87 Ohio St.3d 68, 72 (1999).

Examples of "good cause" include a conflict of interest, a complete breakdown in

communication, or an irreconcilable conflict which leads to an apparently unjust result. State

v. Bullock, 12th Dist. Clermont No. CA2005-04-031, 2006-Ohio-598, ¶ 13.

       {¶ 24} "The decision whether to substitute an appointed attorney for an indigent

defendant is within the trial court's discretion." State v. Bizzell, 12th Dist. Clinton No.

CA2006-04-015, 2007-Ohio-2160, ¶ 6. This court reviews a trial court's decision denying a

defendant's request to substitute appointed counsel under an abuse of discretion standard.

State v. Hubbard, 12th Dist. Warren No. CA2007-01-008, 2008-Ohio-2630, ¶ 5. An abuse of

discretion implies that the court's decision was unreasonable, arbitrary, or unconscionable,

and not merely an error of law or judgment. Liso at ¶ 8.

       {¶ 25} In this case, Shindeldecker alleged that his appointed counsel had "seemed

uninterested in my defenses and [has] been unreachable throughout my case stating that it

was her impression that I was going to retain another attorney." Shindeldecker's attorney

also addressed this issue before the court, noting that Shindeldecker had perhaps attempted

to retain new counsel and thought Shindeldecker "is disappointed with my impression of his

options and how his case may resolve." In addressing Shindeldecker's concerns, the trial

court stated:

                Well, it's not unusual that there's a difference of opinion between
                counsel and a defendant as to how the case should proceed.
                What I've heard doesn't convince me that the Defendant is
                entitled to a new attorney.

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              I have no reason to believe that if I appointed somebody else, a
              month down the road or two months, I'm not going to be in the
              same position that I am in right now.

              There was an indication by Mr. Muenchenback, apparently that
              attempt to retain him fell though. That's not the Court's problem.
              The request is denied.

       {¶ 26} After a thorough review of the record, we find no abuse of discretion in the trial

court's decision denying Shindeldecker's request to have new counsel appointed for him.

This matter had been pending for some time and Shindeldecker's request came 12 days prior

to the final trial date, which had already been continued on two prior occasions. Moreover,

just as the trial court found, differences of opinion are not unusual between a criminal

defendant and counsel. Bizzell, 2007-Ohio-2160 at ¶ 9. Here, although there is some

indication that there was a disagreement between Shindeldecker and his appointed counsel,

there is nothing to suggest that the disagreement interfered with the preparation and

presentation of a competent defense. Accordingly, we find the trial court did not abuse its

discretion in denying Shindeldecker's request for new counsel. Shindeldecker's second

assignment of error is overruled.

       {¶ 27} Assignment of Error No. 3:

       {¶ 28} THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S OBJECTION

TO ADMISSION OF THE CRUISER VIDEO.

       {¶ 29} In his third assignment of error, Shindeldecker argues that the use of the cruiser

cam video, which showed Shindeldecker's arrest and the arresting officer's discovery of

methamphetamine, should have been excluded pursuant to Evid.R. 403(A).

       {¶ 30} A trial court has broad discretion in the admission and exclusion of evidence.

State v. Birt, 12th Dist. Butler No. CA2012-02-031, 2013-Ohio-1379, ¶ 53. Therefore, a

reviewing court will not disturb the ruling of the trial court as to the admissibility of relevant

evidence unless an appellant can demonstrate both an abuse of discretion, and that he or
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she was materially prejudiced. State v. Eacholes, 12th Dist. Butler No. CA2013-11-195,

2014-Ohio-3993, ¶ 17.

       {¶ 31} Evid.R. 403(A) requires relevant evidence to be excluded "if its probative value

is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of

misleading the jury." For evidence to be excluded on this basis, "the probative value must be

minimal and the prejudice great." Birt at ¶ 54. Unfavorable evidence is not equivalent to

unfairly prejudicial evidence. Id.

       {¶ 32} Based on our review, we find no error in the introduction of the cruiser cam

video. The cruiser cam video depicts the search on Shindeldecker and the discovery of

methamphetamine. After this discovery, the arresting officer warned Shindeldecker to turn

over any additional methamphetamine prior to his conveyance to the county jail, as that could

carry additional charges. The video was therefore useful, at least in part, in showing that

Shindeldecker knowingly conveyed, or attempt to convey, drugs into a detention facility

following his arrest. Although Shindeldecker complains that the video showing his arrest was

highly prejudicial, we note there had already been ample testimony that Shindeldecker had

been arrested and the arresting officer had discovered methamphetamine on his person.

Moreover, we disagree with Shindeldecker's suggestion that a jury may be tempted to "infer

guilt rather than presuming innocence" based on the admission of this video. The trial court,

at multiple times, reminded the jury of the presumption of innocence and the burden of proof

necessary to secure a criminal conviction. Therefore, we find no error in the use of the

cruiser cam video and Shindeldecker's third assignment of error is overruled.

       {¶ 33} Assignment of Error No. 4:

       {¶ 34} THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO FIVE

YEARS IN PRISON, CONSIDERING THE DEFENDANT'S LACK OF SIGNIFICANT

CRIMINAL HISTORY.
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        {¶ 35} In his fourth assignment of error, Shindeldecker argues that his prison sentence

is contrary to law. We find no merit to Shindeldecker's argument.

        {¶ 36} This court reviews felony sentences pursuant to the standard of review set forth

in R.C. 2953.08(G)(2) to determine whether the imposition of those sentences is clearly and

convincingly contrary to law. State v. Stamper, 12th Dist. Butler No. CA2012-08-166, 2013-

Ohio-5669, ¶ 9. A sentence is not clearly and convincingly contrary to law where the record

supports the trial court's findings under R.C. 2929.14(C)(4) and where the trial court

considers the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C.

2929.12, properly applies postrelease control, and sentences appellant within the permissible

statutory range. Id.

        {¶ 37} In the present case, the trial court ordered concurrent prison sentences for

illegal manufacture of drugs, endangering children, and illegal conveyance. The remaining

counts were then merged for purposes of sentencing. With respect to Shindeldecker's

conviction for illegal manufacture of drugs, a first-degree felony, he was subject to a prison

term of 11 years, including a mandatory minimum of four years in prison. R.C. 2929.14

(A)(1); R.C. 2925.04(C)(3)(b). The counts for endangering children and illegal conveyance,

both third-degree felonies, subjected Shindeldecker to additional time of nine months to three

years in prison. R.C. 2929.14. Ultimately, the trial court sentenced Shindeldecker to a five-

year prison term for the illegal manufacture of drugs.1

        {¶ 38} After reviewing the record, we find Shindeldecker's sentence is not clearly and

convincingly contrary to law. Shindeldecker's sentence was within the permissible statutory

range and the record reflects the trial court considered all relevant seriousness and




1. The trial court imposed additional prison terms of three years for endangering children and illegal conveyance,
but ordered that those terms be served concurrently with the sentence imposed for the illegal manufacturing of
drugs.
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recidivism factors set forth in R.C. 2929.11 and R.C. 2929.12. Although Shindeldecker

argues that his sentence is inappropriate based on his lack of significant criminal history and

the fact that his children were not harmed as a result of the methamphetamine lab, we note

that even if we were to agree with him, those are but two of the considerations that a trial

court may consider in entering its sentencing decision. See, e.g., State v. Conn, 12th Dist.

Warren Nos. CA2014-04-059, CA2014-04-061, and CA2014-06-084, 2015-Ohio-1766, ¶ 25

(prison term not clearly and convincingly contrary to law despite criminal defendant's "prior

spotless criminal record"). Here, the trial court's sentencing decision is supported by the

record and not contrary to law. Therefore, Shindeldecker's fourth assignment of error is

without merit and overruled.

       {¶ 39} Judgment affirmed.


       RINGLAND and HENDRICKSON, JJ., concur.




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