[Cite as State v. Caudill, 2018-Ohio-550.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             MADISON COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :      CASE NO. CA2017-05-011

                                                   :            OPINION
    - vs -                                                       2/12/2018
                                                   :

SCOTT A. CAUDILL,                                  :

        Defendant-Appellant.                       :



      CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                           Case No. CRI 20160158



Stephen J. Pronai, Madison County Prosecuting Attorney, Rachel M. Price, 59 North Main
Street, London, Ohio 43140, for plaintiff-appellee

Stephen P. Hardwick, Assistant Ohio Public Defender, 250 East Broad Street, Suite 1400,
Columbus, Ohio 43215, for defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Scott Caudill, appeals his convictions in the Madison

County Court of Common Pleas for illegal manufacturing and possession of drugs.

        {¶ 2} Madison County officials went to the home of Travis Basham to perform a

welfare check on Basham's children. The officials located a methamphetamine lab, and law

enforcement officers later returned to arrest Basham.              Officers discovered a
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methamphetamine lab in the shed on Basham's property, just outside his house. Officers

found glass beakers, plastic funnels, coffee filters, bottles with tubing, white powder on a

glass plate, plastic mixing bottles, and a glass container with 23 grams of dissolved

methamphetamine.

       {¶ 3} Basham told officers that Caudill was a frequent visitor to Basham’s house and

that Caudill participated in manufacturing methamphetamine and using the drugs they

created. Officers ran Caudill and his wife's information through a national database and

learned that the two frequently purchased pseudoephedrine, a key ingredient in making

methamphetamine, on multiple occasions.             Officers later determined that Caudill's

fingerprints were located on the equipment used to manufacture the methamphetamine

found in Basham's shed. Officers arrested Caudill, and the state charged him with illegal

manufacture of drugs, illegal assembly or possession of chemicals for the manufacture of

drugs, and aggravated possession of drugs.

       {¶ 4} Caudill pled not guilty, and the matter proceeded to a two-day trial. The jury

found Caudill guilty on each count.        During sentencing, the trial court merged the

manufacturing charge into the possession conviction and sentenced Caudill to an aggregate

sentence of five years in prison. The trial court ordered Caudill to pay a fine over objection.

Caudill now appeals his convictions and sentence, raising the following assignments of error.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE TRIAL COURT ERRED BY ENTERING A JUDGMENT OF CONVICTION

ON COUNT III, AGGRAVATED DRUG POSSESSION WHEN THE EVIDENCE WAS

INSUFFICIENT TO SUSTAIN THE CONVICTION AND WHEN THE CONVICTION WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 7} Caudill argues in his first assignment of error that his convictions were not

supported by sufficient evidence and were against the manifest weight of the evidence.
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       {¶ 8} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). When reviewing

the sufficiency of the evidence underlying a criminal conviction, an appellate court examines

the evidence in order to determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist.

Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he 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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶ 9} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶

14. 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

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.

Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.

       {¶ 10} In reviewing the evidence, an appellate court must be mindful that the jury, as

the original trier of fact, was in the best position to judge the credibility of witnesses and

determine the weight to be given to the evidence. State v. Blankenburg, 197 Ohio App.3d

201, 2012-Ohio-1289, ¶ 114 (12th Dist.). Therefore, an appellate court will overturn a

conviction due to the manifest weight of the evidence "only in the exceptional case in which

the evidence weighs heavily against the conviction." Id. Although the legal concepts of

sufficiency of the evidence and weight of the evidence are quantitatively and qualitatively
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different, "[a] determination that a conviction is supported by the manifest weight of the

evidence will also be dispositive of the issue of sufficiency." State v. Jones, 12th Dist. Butler

No. CA2012-03-049, 2013-Ohio-150, ¶ 19.

       {¶ 11} In this assignment of error Caudill challenges only his conviction for possession

of the finished methamphetamine product. According to R.C. 2925.11(A), "No person shall

knowingly obtain, possess, or use a controlled substance or a controlled substance analog."

Possession means "having control over a thing or substance, but may not be inferred solely

from mere access to the thing or substance through ownership or occupation of the premises

upon which the thing or substance is found." R.C. 2925.01(K). Possession may be

constructive or actual. State v. Williams, 12th Dist. Butler No. CA2014-09-180, 2015-Ohio-

2010, ¶ 14.

       {¶ 12} "An accused has 'constructive possession' of an item when the accused is

conscious of the item's presence and is able to exercise dominion and control over it, even if

the item is not within the accused's immediate physical possession." State v. Jester, 12th

Dist. Butler No. CA2010-10-264, 2012-Ohio-544, ¶ 25. Constructive possession may be

proven by circumstantial evidence alone. Williams at ¶ 15. Absent a defendant's admission,

the surrounding facts and circumstances, including the defendant's actions, are evidence that

the trier of fact can consider in determining whether the defendant had constructive

possession. Id.

       {¶ 13} A person may knowingly possess or control property belonging to another; the

state need not establish ownership to prove constructive possession and two or more

persons may have possession of an object together if they can control it, exclusive of others.

State v. Weckner, 12th Dist. Brown No. CA2001-06-009, 2002-Ohio-1012.

       {¶ 14} During trial, the state presented testimony demonstrating that Caudill's finger

prints were found on several items necessary in the manufacture of the methamphetamine,
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including the mason jar in which the finished product was located, a bottle of drain opener,

and a box containing a ripped-open ice compress.1 These materials were used during the

manufacturing of the methamphetamine found in the shed, and Caudill's fingerprints

demonstrate his direct involvement with the process and finished product.

        {¶ 15} Moreover, Basham was a witness at trial and testified that Caudill brought

pseudoephedrine to make the batch of methamphetamine seized from the shed by officers.

An officer confirmed that Caudill was known to purchase pseudoephedrine, and testified that

a search for Caudill's name in a national database indicated that Caudill purchased

pseudoephedrine every 30 days. The officer further testified that there is a 30-day waiting

period between times one is permitted to purchase pseudoephedrine.

        {¶ 16} Basham also testified that Caudill was involved in the manufacturing process by

cooking the methamphetamine, peeling batteries, measuring chemicals, and shaking the

bottles. Caudill also instructed Basham on the manufacturing process, and Basham testified

that Caudill was present on the nights when the specific methamphetamine was made that

officers ultimately seized.

        {¶ 17} After reviewing the record, and viewing the evidence in a light most favorable to

the prosecution, we find that any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt. Moreover, we find that the jury did not

clearly lose its way or create such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered. Caudill's first assignment of error is, therefore,

overruled.

        {¶ 18} Assignment of Error No. 2:

        {¶ 19} THE TRIAL COURT ERRED BY CONVICTING MR. CAUDILL OF A SECOND-


1. A witness testified that ice packs contain ammonium nitrate and that in his experience, the only reason to rip
open an ice pack is to use its contents in the one-pot method of manufacturing methamphetamine.
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DEGREE FELONY WHEN THE VERDICT FORM SUPPORTED ONLY A CONVICTION

FOR A THIRD-DEGREE FELONY.

       {¶ 20} Caudill argues in his second assignment of error that the trial court erred in

convicting him of a second-degree felony for Count I, illegal manufacture of drugs, when the

jury verdict form did not provide support for a second-degree conviction.

       {¶ 21} According to R.C. 2945.75(A)(2), "a guilty verdict shall state either the degree of

the offense of which the offender is found guilty, or that such additional element or elements

are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of

the offense charged."

       {¶ 22} "Pursuant to the clear language of R.C. 2945.75, a verdict form signed by a jury

must include either the degree of the offense of which the defendant is convicted or a

statement that an aggravating element has been found to justify convicting a defendant of a

greater degree of a criminal offense." State v. McDonald, 137 Ohio St.3d 517, 2013-Ohio-

5042, ¶ 13. "The verdict form itself is the only relevant thing to consider in determining

whether the dictates of R.C. 2945.75 have been followed." Id. at ¶ 17.

       {¶ 23} According to R.C. 2925.04(A), "no person shall knowingly cultivate marihuana

or knowingly manufacture or otherwise engage in any part of the production of a controlled

substance." R.C. 2925.04(C)(2) and (3) further provide that if the drug involved is included in

Schedules I or II or is methamphetamine, illegal manufacture of drugs is a felony of the

second degree, and is subject to a mandatory prison term. Otherwise, R.C. 2925.04(C)(4)

provides that if "the drug involved in the violation of division (A) of this section is any

compound, mixture, preparation, or substance included in schedule III, IV, or V, illegal

manufacture of drugs is a felony of the third degree * * *."

       {¶ 24} Therefore, and to know which degree of manufacturing Caudill was guilty of, the

jury verdict form was required to contain either a designation of the specific degree or a
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special verdict finding as to the drug that Caudill was guilty of manufacturing to determine on

which schedule the drug is listed. However, the verdict form did not list the degree for which

the jury found Caudill guilty. Nor did the verdict form specify the drug for which the jury found

Caudill guilty of manufacturing.

       {¶ 25} The state contends that the only drug discussed during the trial was

methamphetamine. While that may be true, the Ohio Supreme Court specifically directs

reviewing courts to focus only upon the jury verdict form when determining whether the

conviction comports with the dictates of R.C. 2945.75. As such, we find that the jury verdict

form for Caudill's conviction for Count I, illegal manufacture of drugs, does not contain a

degree specification nor any special findings by the jury as to what drug Caudill was guilty of

manufacturing. The verdict form, therefore, supports only the third-degree felony charge.

The trial court is ordered to vacate Caudill's conviction for a second-degree felony on Count I,

and instead, enter a judgment convicting Caudill of a third-degree felony for that count.

Caudill's second assignment of error is, therefore, sustained.

       {¶ 26} Assignment of Error No. 3:

       {¶ 27} THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A $7,500 FINE

AFTER DENYING MR. CAUDILL THE OPPORTUNITY TO EXPLAIN WHY HE LACKED

THE ABILITY TO PAY.

       {¶ 28} Caudill argues in his third assignment of error that the trial court erred in

ordering him to pay a $7,500 fine as part of his sentence.

       {¶ 29} According to R.C. 2929.18(A)(1), a trial court may sentence the defendant to a

financial sanction as part of the defendant's felony sentence. "Before imposing a financial

sanction under section 2929.18 of the Revised Code * * * the court shall consider the

offender's present and future ability to pay the amount of the sanction or fine." R.C.

2929.19(B)(5).
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        {¶ 30} "Although preferable for appellate review, a trial court need not explicitly state in

its judgment entry that it considered a defendant's ability to pay a financial sanction. Rather,

courts look to the totality of the record to see if this requirement has been satisfied." State v.

Dehner, 12th Dist. Clermont No. CA2012-12-090, 2013-Ohio-3576, ¶ 47. There are no

express factors that must be considered or specific findings made regarding the offender's

ability to pay. State v. Dandridge, 12th Dist. Butler No. CA2003-12-330, 2005-Ohio-1077, ¶

6. R.C. 2929.19(B)(5) requires only that the trial court consider the offender's present or

future ability to pay. Id.

        {¶ 31} "The determination that a defendant is indigent for purposes of appointed

counsel is separate and distinct from a determination of being indigent for purposes of paying

a mandatory fine." State v. Johnson, 12th Dist. Butler No. CA2011-11-212, 2014-Ohio-3776,

¶ 15.

        {¶ 32} Caudill filed an affidavit of indigency after being indicted, and later objected to

any fine being imposed at sentencing. The affidavit of indigency reflected that Caudill had no

income and few expenses. The trial court questioned Caudill regarding his finances and how

he generated income. Specifically, the court asked Caudill how he had been supporting

himself, and asked Caudill to describe his employment history. Caudill reported he had been

"drawing assistance" but also told the court that he received help from his son and that he

worked on cars, "mechanic work here and there." The trial court went on to conclude that

while Caudill was indigent for the purposes of court-appointed counsel, Caudill nonetheless

had "future earning capacities." The court then imposed a $7,500 fine.

        {¶ 33} While the transcript indicates that Caudill may have been interrupted by the trial

court during his answer to the question about his employment history, the record

nevertheless indicates that the trial court was able to consider Caudill's present and future

ability to pay based on the answers Caudill had already given. Caudill invites us to speculate
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that he had other reasons to offer as to his inability to earn future income once released from

incarceration had the trial court not interrupted him. However, and based on the record

before us, we decline that invitation.

       {¶ 34} After personally observing Caudill and noting the difference between Caudill's

affidavit and his representations at the sentencing hearing, nothing was presented to the trial

court suggesting Caudill would not be able to pursue his mechanic endeavors in the future

once his sentence has been served. We do not find the trial court failed to consider Caudill's

future ability to pay toward fines. As such, we overrule Caudill's final assignment of error.

       {¶ 35} Judgment affirmed in part, reversed in part, and the matter is remanded for the

sole purpose of vacating Caudill's conviction for Count I as a second-degree felony, and

entering a judgment and resentencing Caudill on Count I as a third-degree felony.


       S. POWELL, P.J., and M. POWELL, J., concur.




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