[Cite as State v. Woods, 2017-Ohio-5694.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :       JUDGES:
                                            :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                  :       Hon. William B. Hoffman, J.
                                            :       Hon. Earle E. Wise, Jr., J.
-vs-                                        :
                                            :
GEREMY WOODS                                :       Case No. 16-COA-028
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 15-CRI-049




JUDGMENT:                                           Affirmed in Part and
                                                    Reversed in Part




DATE OF JUDGMENT:                                   June 30, 2017




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

CHRISTOPHER E. BALLARD                              CHRISTINA I. REIHELD
110 Cottage Street, Third Floor                     P. O. Box 532
Ashland, OH 44805                                   Danville, OH 43014
Ashland County, Case No. 16-COA-028                                                        2



Wise, Earle, J.

        {¶ 1} Defendant-appellant Geremy Woods appeals his conviction and sentence

entered by the Ashland County Court of Common Pleas. Plaintiff-appellee is the state of

Ohio.

                            FACTS AND PROCEEDURAL HISTORY

        {¶ 2} In 2014, Robert Plues lived at 637 Cottage Street in Ashland with appellant’s

sister, Sheena Woods. Sheena had a history of involvement with drugs, specifically

methamphetamine.

        {¶ 3} In August of 2014, Plues was sentenced to 180 days in jail for committing

domestic violence against Sheena. During his incarceration he had sporadic contact with

Sheena, but understood that she was still living at 637 Cottage Street. The residence is

within 1000 feet of a middle school.

        {¶ 4} Plues was released from jail in early March of 2015. He returned home to find

his van and Sheena missing. When she failed to return for more than a week, Plues

contacted the Ashland Police Department to report the van missing. While making the

police report, Pleus reported other items missing, including checks, a gun, a tv and a

computer. He then told the police of his suspicion of there being a meth lab in his

basement. He showed officers some trash bags he had found in a crawl space in his

basement which contained “chemicals and bottles.”

        {¶ 5} Officer Craig Kiley inspected the area and observed a “peeled” lithium battery,

cold packs, and a two liter bottle. Based on his training and experience, Officer Kiley knew

these items were used in the manufacture of methamphetamine. Officer Kiley called

Lieutenant Joel Icehour and Detective Brian Evans to the scene to assist.
Ashland County, Case No. 16-COA-028                                                          3


       {¶ 6} Officers photographed the scene and collected evidence. Additional items

used to produce methamphetamine were found in the bags including rubber tubing.

Portions of the tubing sent to the crime lab for testing tested positive for

methamphetamine.

       {¶ 7} Officers obtained pharmacy records which showed appellant purchased

pseudoephedrine on December 15, 2014, from a Walmart pharmacy. On the same day,

appellant’s sister purchased pseudoephedrine from a Discount Drug Mart. Appellant later

admitted to buying the pills, returning to the Cottage Street home to conduct a cook,

helping his sister and uncle peel lithium batteries for the cook, and accepting money from

his uncle in exchange for instructing his uncle on how to manufacture methamphetamine.

       {¶ 8} The Ashland County Grand Jury later returned an indictment charging

appellant with one count of illegal assembly or possession of chemicals for the

manufacture of drugs, in violation of R.C. 2925.041(A), a felony of the second degree;

one count of illegal manufacture of drugs, in violation of R.C. 2925.04(A), a felony of the

first degree; and one count of possessing criminal tools in violation of R.C. 2923.24(A).

       {¶ 9} Appellant waived his right to a jury trial and proceeded to a trial before the

court on April 26, 2015. After hearing all the evidence, the trial court found appellant guilty

of illegal assembly or possession of chemicals for the manufacture of drugs and guilty of

illegal manufacture of drugs, but acquitted appellant of possessing criminal tools.

       {¶ 10} On June 23, 2016, the trial court sentenced appellant to a mandatory three

years incarceration for count one, illegal assembly or possession of chemicals for the

manufacture of drugs, and a mandatory five years incarceration for count two, illegal

manufacture of drugs. The court imposed the sentences concurrently for an aggregate
Ashland County, Case No. 16-COA-028                                                   4


prison term of five years. The trial court further imposed a fine of $7,500 on count one

and $10,000 on count two.

      {¶ 11} On September 26, 2016, we granted appellant’s motion for delayed appeal.

Appellant now appeals, assigning as error:



                                                I

      {¶ 12} “THE TRIAL COURT ERRED BY FAILING TO MERGE APPELLANT

WOOD’S CONVICTIONS FOR MANUFACTURE OF METHAMPHETAMINE AND

ASSEMBLY        OF     CHEMICALS         WITH       INTENT     TO     MANUFACTURE

METHAMPHETAMINE.”

                                              II

      {¶ 13} “APPELLANT WOODS’ SENTENCE WAS CONTRARY TO LAW AS THE

TRIAL COURT BELIEVED THAT THE MINIMUM MANDATORY PRISON SENTENCE

IN THIS MATTER WAS FIVE YEARS WHEN IT WAS ACTUALLY FOUR YEARS.”

                                              III

      {¶ 14} “THE TRIAL COURT ERRED BY ORDERING APPELLANT WOODS TO

PAY MANDATORY FINES WHERE APPELLANT WOODS HAD FILED AN AFFIDAVIT

OF INDIGENCE BEFORE THE SENTENCING HEARING AND EVIDENCE IN THE

RECORD ILLUSTRATED THAT HE IS INDIGENT AND UNABLE TO PAY THE

MANDATORY FINES.
Ashland County, Case No. 16-COA-028                                                       5


                                                 IV

       {¶ 15} “APPELLANT WOODS’ CONVICTION FOR MANUFACTURE OF

METHAMPHETAMINE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

                                              I, II, III

       {¶ 16} Because they involve the same resolution, we address appellant’s first three

assignments of error together.

       {¶ 17} In his first assignment of error, appellant argues the trial court committed

plain error when it convicted him of both illegal assembly or possession of chemicals for

the manufacture of drugs and for the illegal manufacture of drugs as the counts are allied

offenses of similar import.

       {¶ 18} This court has previously determined that illegal assembly or possession of

chemicals for the manufacture of drugs and illegal manufacture of drugs are allied

offenses of similar import. The state concedes this argument pursuant to our decisions in

State v. Carr, 5th Dist. Perry No. 15CA00007, 2016-Ohio-9 and State v. Woods, 5th Dist.

Ashland No. 15-COA-036, 2016-Ohio-4830.

       {¶ 19} Accordingly, appellant’s first assignment of error is sustained.

       {¶ 20} In his second assignment of error, appellant questions whether the trial court

understood the mandatory minimum sentences in this matter, and in his third assignment

of error, appellant challenges the imposition of mandatory fines given his alleged indigent

status. Because our resolution of appellant’s first assignment of error requires remand for

resentencing, we find appellant may raise these concerns at the resentencing and we

decline to reach them at this juncture.
Ashland County, Case No. 16-COA-028                                                      6


                                               IV

       {¶ 21} In his final assignment of error, appellant argues his conviction for illegal

manufacture of drugs is against the manifest weight of the evidence. We disagree.

       {¶ 22} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing

court is to examine the entire record, weigh the evidence and all reasonable inferences,

consider the credibility of witnesses and determine "whether in resolving conflicts in the

evidence, the jury 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. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio

St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only

in the exceptional case in which the evidence weighs heavily against the conviction."

Martin at 175.

       {¶ 23} Appellant was convicted of illegal manufacture of drugs, in violation of R.C.

2925.04(A). That section prohibits knowingly manufacturing or otherwise engaging in any

part of the production of a controlled substance.

       {¶ 24}    The record contains sufficient evidence that appellant purchased

pseudoephedrine and then participated in the methamphetamine cook. As this court has
Ashland County, Case No. 16-COA-028                                                    7


repeatedly held, judgments supported by some competent, credible evidence going to all

the essential elements of the case will not be reversed as being against the manifest

weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376

N.E.2d 578 (1978).

      {¶ 25} The fourth assignment of error is overruled.

      {¶ 26} The judgment of the Ashland County Court of Common Pleas is affirmed in

part, reversed in part, and remanded for resentencing in accordance with the law and this

opinion.


By Wise, Earle, J.

Delaney, P.J. and

Hoffman, J. concur.


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