[Cite as State v. Evans-Goode, 2016-Ohio-5361.]


                          IN THE COURT OF APPEALS OF OHIO
                             FOURTH APPELLATE DISTRICT
                                   MEIGS COUNTY

STATE OF OHIO,                  :
                                :   Case No. 15CA10
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
SUSAN EVANS-GOODE,              :
                                :
     Defendant-Appellant.       :   Released: 08/08/16
_____________________________________________________________
                          APPEARANCES:

Timothy Young, Ohio Public Defender, and Eric M. Hedrick, Assistant State
Public Defender, Columbus, Ohio, for Appellant.

Colleen S. Williams, Meigs County Prosecutor, and Jeremy L. Fisher,
Assistant County Prosecutor, Pomeroy, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Susan Evans-Goode appeals her convictions and sentences in the

Meigs County Court of Common Pleas after a jury found her guilty of one

count of illegal manufacture of methamphetamine, a second degree felony in

violation of R.C. 2925.04(A), and illegal assembly or possession of

chemicals for the manufacture of methamphetamine, a third degree felony in

violation of R.C. 2925.041(A). On appeal, Appellant contends that 1) she

was denied her right to due process and a fair trial when the jury found her

guilty of illegal assembly or possession of chemicals for the manufacture of
Meigs App. No. 15CA10                                                           2

methamphetamine when there was not sufficient evidence presented to

sustain a conviction; and 2) the trial court erred in violation of her rights

under the Double Jeopardy Clause of the Fifth Amendment to the U.S.

Constitution, Article I, Section 10 of the Ohio Constitution, and R.C.

2941.25, when it failed to merge for sentencing offenses that had a similar

import, arose from the same conduct, and were not committed separately or

with a separate animus. Upon review, we find no merit to Appellant’s

arguments. Accordingly, we overrule both of her assignments of error and

affirm the judgment of the trial court.

                                    FACTS

       {¶2} Appellant Susan Evans-Goode was indicted on one count of

illegal manufacture of methamphetamine, a second degree felony in

violation of R.C. 2925.04(A), and one count of illegal assembly or

possession of chemicals for the manufacture of methamphetamine, a third

degree felony in violation of R.C. 2925.041(A). The indictment arose from

activities which occurred on or about January 21, 2015, when officers

arrived at 22688 Bucktown Road, Racine, Ohio, to conduct a “knock and

talk,” which eventually led to obtaining and executing a search warrant. The

search warrant led to the identification of various items used in the

production of methamphetamine, as well as an active one-pot meth lab in
Meigs App. No. 15CA10                                                         3

Appellant’s vehicle, which was parked on the premises. Although the

residence was owned by Terri Carmichael, the record indicates that

Appellant had been living at the residence for approximately one month on

the day the search warrant was executed. Appellant’s boyfriend, Mark

Russell, was also present at the residence that day, but was not living there at

the time.

      {¶3} Appellant was tried before a jury on June 30, 2015. The State

presented testimony from the following individuals: Ronald Duvall, a

pharmacist employed at Rite-Aid Pharmacy in Pomeroy, Ohio; Stanton

Wheasler, a forensic scientist employed by the Ohio Bureau of Criminal

Identification and Investigation (BCI); Sergeant Robert “Adam” Smith of

the Meigs County Sheriff’s Department; and Terri Carmichael, Appellant’s

co-defendant. Appellant did not present any witnesses in her defense.

      {¶4} The jury ultimately found Appellant guilty of both charges

contained in the indictment. The trial court subsequently sentenced

Appellant to prison terms on each conviction, to be served consecutively, for

a total term of eleven years. It is from this order that Appellant now appeals

her convictions and sentences, setting forth two assignments of error for our

review.
Meigs App. No. 15CA10                                                          4

                        ASSIGNMENTS OF ERROR

“I.   SUSAN G. EVANS WAS DENIED HER RIGHT TO DUE
      PROCESS AND A FAIR TRIAL WHEN THE JURY FOUND HER
      GUILTY OF ILLEGAL ASSEMBLY OR POSSESSION OF
      CHEMICALS FOR MANUFACTURE OF METHAMPHETAMINE
      WHEN THERE WAS NOT SUFFICIENT EVIDENCE
      PRESENTED TO SUSTAIN A CONVICTION. FIFTH AND
      FOURTEENTH AMENDMENTS, UNITED STATES
      CONSTITUTION; ARTICLE I, SECTION 16, OHIO
      CONSTITUTION.

II.   THE TRIAL COURT ERRED IN VIOLATION OF MS. EVANS’
      RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE OF THE
      FIFTH AMENDMENT TO THE U.S. CONSTITUTION, ARTICLE
      I, SECTION 10 OF THE OHIO CONSTITUTION, AND R.C.
      2941.25, WHEN IT FAILED TO MERGE FOR SENTENCING
      OFFENSES THAT HAD A SIMILAR IMPORT, AROSE FROM
      THE SAME CONDUCT, AND WERE NOT COMMITTED
      SEPARATELY OR WITH A SEPARATE ANIMUS.”

                        ASSIGNMENT OF ERROR I

      {¶5} In her first assignment of error, Appellant contends that her

convictions were not supported by sufficient evidence. A claim of

insufficient evidence invokes a due process concern and raises the question

whether the evidence is legally sufficient to support the verdict as a matter of

law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence,

if believed, reasonably could support a finding of guilt beyond a reasonable

doubt. Thompkins, syllabus. The standard of review is whether, after
Meigs App. No. 15CA10                                                           5

viewing the probative evidence and inferences reasonably drawn therefrom

in the light most favorable to the prosecution, any rational trier of fact could

have found all the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979); State v.

Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). Furthermore, a

reviewing court is not to assess “whether the state's evidence is to be

believed, but whether, if believed, the evidence against a defendant would

support a conviction.” Thompkins at 390 (Cook, J., concurring).

      {¶6} Thus, when reviewing a sufficiency-of-the-evidence claim, an

appellate court must construe the evidence in a light most favorable to the

prosecution. State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996);

State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing

court will not overturn a conviction on a sufficiency-of-the-evidence claim

unless reasonable minds could not reach the conclusion that the trier of fact

did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State

v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).

      {¶7} R.C. 2925.04(A) states: “No person shall knowingly * * *

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

controlled substance.” Thus, in order to sustain appellant's conviction, the

greater weight of the evidence must show that Appellant (1) knowingly (2)
Meigs App. No. 15CA10                                                          6

manufactured or (3) otherwise engaged in the production of (4) a controlled

substance, i.e., methamphetamine. R.C. 2925.041(A) states: “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.”

      {¶8} “A person acts knowingly, regardless of his purpose, when he is

aware that his conduct will probably cause a certain result or will probably

be of a certain nature. A person has knowledge of circumstances when he is

aware that such circumstances probably exist.” R.C. 2901.22(B). “With

regard to the ability to prove an offender's intentions, the Ohio Supreme

Court has recognized that ‘intent, lying as it does within the privacy of a

person's own thoughts, is not susceptible [to] objective proof.’ ” State v.

Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298, ¶ 41;

quoting State v. Garner, 74 Ohio St.3d 49, 60, 656 N.E.2d 623 (1995).

Thus, “whether a person acts knowingly can only be determined, absent a

defendant's admission, from all the surrounding facts and circumstances

* * *.” State v. Huff, 145 Ohio App.3d 555, 563, 763 N.E.2d 695 (1st

Dist.2001).
Meigs App. No. 15CA10                                                           7

      {¶9} “ ‘Manufacture’ means to plant, cultivate, harvest, process,

make, prepare, or otherwise engage in any part of the production of a drug,

by propagation, extraction, chemical synthesis, or compounding, or any

combination of the same, and includes packaging, repackaging, labeling, and

other activities incident to production.” R.C. 2925.01(J). Further, "the

[S]tate is not required to prove that [A]ppellant is the individual who

assembled all of the materials[,] but rather need "only prove that [A]ppellant

engaged in any part of the production of methamphetamine, which includes

extraction and other activities incident to production." State v. Wickersham,

4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, ¶ 37.

      {¶10} “ ‘[P]ossession’ is defined as ‘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.’ ” State v. Gavin, 4th Dist. Scioto No.

13CA3592, 2015-Ohio-2996 ¶ 35; citing R.C. 2925.01(K). “Possession may

be actual or constructive.” Gavin; quoting State v. Moon, 4th Dist. Adams

No. 08CA875, 2009-Ohio-4830, ¶ 19; citing State v. Butler, 42 Ohio St.3d

174, 175, 538 N.E.2d 98 (1989) (“[t]o constitute possession, it is sufficient

that the defendant has constructive possession”).
Meigs App. No. 15CA10                                                         8

      {¶11} “ ‘Actual possession exists when the circumstances indicate

that an individual has or had an item within his immediate physical

possession.’ ” Gavin at ¶ 36; State v. Kingsland, 177 Ohio App.3d 655,

2008-Ohio-4148, 895 N.E.2d 633, ¶ 13 (4th Dist.; quoting State v. Fry, 4th

Dist. Jackson No. 03CA26, 2004-Ohio-5747, ¶ 39. “Constructive

possession exists when an individual knowingly exercises dominion and

control over an object, even though that object may not be within his

immediate physical possession.” Gavin, supra; quoting State v. Hankerson,

70 Ohio St.2d 87, 434 N.E.2d 1362, syllabus (1982); State v. Brown, 4th

Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 19. For constructive

possession to exist, the State must show that the defendant was conscious of

the object's presence. Gavin, supra; Hankerson at 91; Kingsland at ¶ 13.

Both dominion and control, and whether a person was conscious of the

object's presence, may be established through circumstantial evidence.

Gavin, supra; Brown at ¶ 19. “Moreover, two or more persons may have

joint constructive possession of the same object.” Id.

      {¶12} Appellant argues that the State failed to show the presence of

any chemicals used to make methamphetamine and also failed to show that

Appellant possessed a chemical used to make methamphetamine. More

specifically, Appellant argues that while Sergeant Smith identified various
Meigs App. No. 15CA10                                                            9

different packaging and containers for some chemicals commonly used in

making meth, he did not testify that any of the containers contained the

indicated chemicals and no testing was performed to confirm the identity of

any chemical used to make meth. She further argues that even if it is

determined that the search yielded chemicals used to make meth, there was

insufficient evidence to prove that she possessed the chemicals. Based upon

the following, we reject Appellant’s arguments.

      {¶13} As set forth above, the State introduced testimony from four

witnesses at trial, including a Rite-Aid pharmacist, a forensic scientist from

BCI, a Meigs County Sheriff’s Sergeant, and Appellant’s co-defendant, in

support of its theory that Appellant possessed and assembled chemicals used

in the manufacture of methamphetamine and also manufactured

methamphetamine. Rite-Aid Pharmacist Ronald Duvall testified that Rite-

Aid maintains a central database that monitors purchases of

pseudoephedrine, an ingredient in methamphetamine. He testified that

business records maintained by Rite-Aid demonstrated that Appellant

attempted to purchase Zyrtec-D, which contains pseudoephedrine, on

January 7, 2015, but was blocked from making the purchase due to the fact

that she had purchased more than the maximum amount allowed by law over
Meigs App. No. 15CA10                                                           10

a thirty-day time period. He further testified that she successfully purchased

Allegra-D, which also contains pseudoephedrine, on January 13, 2015.

      {¶14} BCI Forensic Scientist Stanton Wheasler also testified on

behalf of the State and was qualified as an expert. He testified that he tested

four items that were provided to him in connection with this case. One of

the items contained an insufficient sample, one was not able to be identified,

but two of the four items, which consisted of a bag containing powder and a

plastic bottle with glass vials, contained methamphetamine. Plastic tubing

submitted with the plastic bottle also contained trace amounts of

methamphetamine. The BCI records indicate that the item determined to

contain methamphetamine came from a one-pot lab, which the record

reveals was recovered from Appellant’s vehicle.

      {¶15} Meigs County Sheriff’s Department Sergeant Adam Smith

testified that he had obtained specialized training with regard to meth labs

and is a certified meth technician. He testified that the certification enabled

him to identify, dismantle and neutralize meth labs for transport and

disposal. He testified that his experience included responding to over sixty

meth labs. He further testified that he initially arrived at the residence in
Meigs App. No. 15CA10                                                                                  11

question on January 21, 2015, after his review of NPLEx logs1 and his

investigation at two other residences pointed him there. He testified that he

planned to conduct a “knock and talk,” but that when Mark Russell opened

the door, he saw Appellant and Terri Carmichael sitting on the couch

holding aluminum foil with smoke coming off of it. He also testified that in

plain view was what appeared to be Drano and tubing under the kitchen

sink. Smith testified that based upon his findings he removed Appellant,

Russell and Carmichael from the residence, obtained a search warrant, and

then searched the residence as well as the vehicles parked at the residence.

        {¶16} Contrary to Appellant’s argument that his testimony was vague

and lacking in specificity, the record indicates Sergeant Smith testified in

great detail as to the items recovered during the search and also testified

regarding nearly sixty photos introduced by the State. Overall, between the

residence, the trash and a burn pile, Smith testified that he found salt,

solvents, Coleman fuel, liquid fire, drain cleaner, lithium batteries that had

been cut in two, ice packs, boxes and water bladders from ice packs and

pseudoephedrine. Smith testified that these items are all precursors or

ingredients required for the manufacture of methamphetamine. He also

testified that he located scales in Appellant’s bedroom that actually had
1
 Smith testified that NPLEx is a national database for anyone that buys Sudafed and that at the time he was
monitoring approximately thirty individuals, including Appellant, on a watch list he had compiled from the
database.
Meigs App. No. 15CA10                                                         12

Appellant’s name written on them in paint marker. Smith further testified

that he located an active one-pot meth lab in Appellant’s vehicle that was

parked at the residence. He testified that he submitted the four items,

including the one-pot, to BCI for testing.

      {¶17} Finally, Terri Carmichael, the owner of the house and

Appellant’s co-defendant, testified on behalf of the State. Carmichael

testified that Appellant was at her house and they were “smoking a little bit

of meth” when law enforcement knocked on the door on January 21, 2015.

She testified that Appellant had been living at her house for about a month

and that although Appellant’s boyfriend, Mark Russell, was present that day,

he did not live there. She testified that she had purchased Sudafed on prior

occasions, approximately eight times, to give to Appellant, in return for

money and meth.

      {¶18} Carmichael testified that she saw Appellant and Russell

manufacture methamphetamine the night of January 20, 2015, and that the

meth was “finished” at her house. She said that earlier in the day on January

21, 2015, and before law enforcement arrived, she, along with Appellant and

Russell, had gone to Walmart in Gallipolis to purchase Sudafed. She

testified that they also stopped at Wetter’s/Tru Value Lumber that day to

purchase Coleman fuel. She testified that they arrived back home at
Meigs App. No. 15CA10                                                         13

approximately 3:00 p.m., and that police arrived at about 3:15 p.m. Finally,

Carmichael testified that she was arrested on January 21, 2015 and had

already pleaded guilty to possession of chemicals, but not manufacturing.

She testified that she contacted Sergeant Smith to set up a deal for a plea

agreement, and that she was awaiting sentencing pending providing

testimony in this case.

        {¶19} In the case sub judice, contrary to Appellant’s arguments, we

believe that Appellant's illegal manufacture and illegal assembly convictions

are supported by sufficient evidence. Specifically, we conclude that a

review of the evidence leads to a rational conclusion that Appellant knew

that methamphetamine was being manufactured in the residence, that

Appellant engaged in some part, if not all, of the manufacturing process, and

also that she had assembled and possessed chemicals used in the

manufacture of methamphetamine, both prior to and after the cook that took

place either the night of January 20, 2015, or early morning of January 21,

2015.

        {¶20} In sum, the evidence and reasonable inferences show the

following: (1) Appellant was living in the residence; (2) stripped lithium

batteries and cold pack bladders were located in and around the residence as

well as the trash; (3) cutting open or stripping lithium batteries and removing
Meigs App. No. 15CA10                                                         14

water bladders from cold packs is part of the production of

methamphetamine; (4) evidence in the form of NPLEx database records and

co-defendant testimony demonstrate Appellant’s repeated attempts to

purchase and/or acquire pseudoephedrine, including testimony from

Appellant’s co-defendant that additional pseudoephedrine and Coleman fuel

were purchased the day after Appellant cooked meth on January 20, 2015;

(5) an active one-pot meth lab was found in Appellant’s vehicle; and (6) due

to the number of ingredients and precursors found in the residence, as well

as scales with Appellant’s name on them located in Appellant’s bedroom,

and an active one-pot meth lab found in Appellant’s vehicle, Appellant was

aware that methamphetamine was being manufactured on the premises, and

she was actively involved in the manufacture as well as the ongoing illegal

assembly and possession of chemicals used in the manufacture of

methamphetamine.

      {¶21} Further, we find no merit to Appellant’s assertion that the State

was required to formally test and identify the chemicals found, such as the

Coleman fuel, the Drano, or the lithium from the batteries. Instead, we

conclude that the fact that the active one-pot was confirmed to contain

methamphetamine leads to a reasonable inference that the various other

chemicals found in the residence were, in fact, what they appeared to be.
Meigs App. No. 15CA10                                                          15

Additionally, Sergeant Smith testified that he had obtained specialized

training in the identification of meth labs. As such, we conclude that his

testimony, if believed, establishes that chemicals used in the manufacture of

methamphetamine were identified.

      {¶22} Additionally, with respect to Appellant’s argument that the

State failed to prove she possessed any chemical used in the manufacture of

methamphetamine, the testimony at trial indicates that Appellant had

successfully purchased pseudoephedrine on January 13, 2015, that she,

Carmichael and Russell purchased additional pseudoephedrine on January

21, 2015, that she lived in the residence where all of the various different

chemicals and precursors were located, that scales with her name on them

were located in her bedroom, and that what was confirmed to be a one-pot

meth lab was found in her vehicle. Therefore, the jury could have rationally

determined that given these circumstances, Appellant illegally possessed and

assembled chemicals used in the manufacture of methamphetamine and also

engaged in some part, or all, of the manufacture of methamphetamine.

      {¶23} Finally, after viewing the probative evidence and inferences

reasonably drawn therefrom in the light most favorable to the prosecution,

we conclude any rational trier of fact could have found all the essential

elements of these offenses beyond a reasonable doubt. As such, we
Meigs App. No. 15CA10                                                         16

conclude Appellant’s convictions are supported by sufficient evidence.

Accordingly, Appellant’s first assignment of error is overruled.

                       ASSIGNMENT OF ERROR II

      {¶24} In her second assignment of error, Appellant contends that the

trial court erred in failing to merge her convictions for purposes of

sentencing, convictions which she argues are for allied offenses of similar

import. Appellant did not raise this issue during the proceedings below so

she has forfeited all but plain error. The Supreme Court of Ohio, however,

has previously recognized that a trial court plainly errs when it imposes

multiple sentences for allied offenses of similar import. State v. Wilson, 4th

Dist. Scioto No. 13CA3542, 2015-Ohio-2016, ¶ 63 (internal citations and

footnote omitted).

      {¶25} The Double Jeopardy Clause of the Fifth Amendment to the

United States Constitution provides that no person shall “be subject for the

same offence to be twice put in jeopardy of life or limb,” and this protection

applies to Ohio citizens through the Fourteenth Amendment and is

additionally guaranteed by Article I, Section 10 of the Ohio Constitution.

This constitutional protection prohibits multiple punishments for the same

offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072 (1969),
Meigs App. No. 15CA10                                                     17

overruled on other grounds; Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201

(1989).

      {¶26} The General Assembly enacted R.C. 2941.25 to specify when

multiple punishments can be imposed:

      "(A) Where the same conduct by defendant can be construed to

      constitute two or more allied offenses of similar import, the

      indictment or information may contain counts for all such

      offenses, but the defendant may be convicted of only one.

      (B) Where the defendant's conduct constitutes two or more

      offenses of dissimilar import, or where his conduct results in

      two or more offenses of the same or similar kind committed

      separately or with a separate animus as to each, the indictment

      or information may contain counts for all such offenses, and the

      defendant may be convicted of all of them."

      {¶27} Appellate courts apply a de novo standard of review in an

appeal challenging a trial court's determination of whether offenses

constitute allied offenses of similar import that must be merged under R.C.

2941.25. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983

N.E.2d 1245, ¶ 28; State v. Cole, 4th Dist. Athens No. 12CA49, 2014-Ohio-

2967, ¶ 7. Merger is a sentencing question, and the defendant bears the
Meigs App. No. 15CA10                                                         18

burden of establishing his entitlement to the protection of R.C. 2941.25.

State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661,

¶ 18.

        {¶28} The Supreme Court of Ohio recently clarified the applicable

analysis in determining when two offenses merge under R.C. 2941.25 in

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. “In

determining whether offenses are allied offenses of similar import within the

meaning of R.C. 2941.25, courts must evaluate three separate factors—the

conduct, the animus, and the import.” Id. at paragraph one of the syllabus.

“Under R.C. 2941.25(B), a defendant whose conduct supports multiple

offenses may be convicted of all the offenses if any one of the following is

true: (1) the conduct constitutes offenses of dissimilar import, (2) the

conduct shows that the offenses were committed separately, or (3) the

conduct shows that the offenses were committed with separate animus.” Id.

at paragraph three of the syllabus.

        {¶29} As set forth above, Appellant did not raise the issue of merger

during the proceedings below. Likewise, the record bears no indication that

the trial court addressed the issue of allied offenses of similar import or

made a determination regarding merger before sentencing Appellant. This

Court has previously remanded cases to the trial court to make initial
Meigs App. No. 15CA10                                                           19

determinations and findings regarding allied offenses of similar import,

rather than deciding the issue for the first time on appeal. However, we have

more recently determined that "we do not believe that a trial court's failure to

consider the merger issue mandates a remand in all cases. Instead, a remand

is unnecessary when the evidence in the record sufficiently allows for

independent review." State v. Wilson, supra, at ¶ 82; citing State v. Whitaker,

2013-Ohio-4434, 999 N.E.2d 278, ¶ 66.

      {¶30} Because we conclude that the record before us sufficiently

allows for independent review of this issue, and in the interests of judicial

economy, we will address this argument on the merits rather than remanding

the case to the trial court for a determination. Further, based upon the

following, we conclude that the offenses presently at issue were committed

separately and with a separate animus and thus, are not allied offenses of

similar import subject to merger.

      {¶31} Here, although the dates specified in the indictment list both

offenses as being committed on or about January 21, 2015, the record

demonstrates that the offenses were ongoing and expanded beyond that date

alone. For instance, there is evidence in the record that Appellant purchased

pseudoephedrine on January 13, 2015, approximately 7 days prior to the day

the meth was cooked on the night of January 20, 2015, and that Carmichael
Meigs App. No. 15CA10                                                                                   20

had purchased pseudoephedrine on eight different occasions, which she gave

to Appellant in exchange for meth. There is also evidence in the record that

Appellant, Carmichael and Russell together traveled to two different

locations on January 21, 2015, the day after the meth was cooked, to buy

additional pseudoephedrine and Coleman fuel. Further, there is evidence in

the record that aside from the used, but still active, one-pot meth lab that was

located in Appellant's vehicle, law enforcement found an abundance of

additional ingredients scattered throughout the residence "over and above"

what was used for the January 20, 2015 cook.2

        {¶32} Appellant argues that our prior decision in State v. Sluss, 4th

Dist. Highland No. 13CA24, 2014-Ohio-4156, is controlling and dictates

that the offenses at issue must be merged for purposes of sentencing as the

indictment herein alleges that both the illegal assembly/possession and the

manufacturing occurred on January 21, 2015. Appellant also argues that

because law enforcement only had one encounter with her, the offenses at

issue should have been merged for sentencing. We disagree.

        {¶33} First, in Sluss, we were assuming a hypothetical and even then,

we essentially stated that such hypothetical "may" result in a different

outcome, i.e. offenses being determined to be allied and requiring merger,

2
 Sergeant Smith, a certified meth technician, testified upon cross-examination in response to defense
counsel's questioning that an active lab is any lab that has not been neutralized.
Meigs App. No. 15CA10                                                         21

not that a different outcome would be required. Sluss at ¶ 22. Second, we

are more inclined to apply the reasoning of the concurring opinion written

by Judge Harsha in Sluss, which seems to place more weight on the fact that

the evidence indicated Sluss had "chemicals used to manufacture

methamphetamine 'over and above' what he used in the two 'cooks' * * *."

Sluss at ¶ 31 (concurring opinion).

      {¶34} We further conclude that the facts before us are similar to the

facts in State v. Chandler, 4th Dist. Highland No. 14CA11, 2014-Ohio-5215,

¶ 1, 3, which involved charges of illegal assembly or possession, as well as

manufacturing of methamphetamine, and which stemmed from a single

encounter with law enforcement. In Chandler, we determined that the

crimes were not committed with the same conduct or with the same animus.

Id. at ¶ 26. In reaching that decision, we found:

      "determinative the fact that Appellant appears to have

      purchased pseudoephedrine, cold packs and other materials on

      different days that [sic] the actual manufacturing at issue in this

      case took place, as well as the fact that additional cold packs,

      over and above those needed to manufacture the meth made on

      November 1, 2013, were found in Appellant's bedroom during

      the search."
Meigs App. No. 15CA10                                                         22

We find the reasoning in Chandler to be persuasive and determinative to the

facts presently before us. Although Chandler was decided under the rubric

of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

and without the benefit of the more recent clarification of the test issued by

the Ohio Supreme Court in State v. Ruff, supra, we believe the reasoning set

forth in Chandler nevertheless provides appropriate guidance for the

determination of this issue and is applicable to the case presently before us.

      {¶35} In light of the foregoing, the trial court did not commit plain

error in failing to merge these offenses because they are not allied offenses

of similar import. Accordingly, Appellant's second assignment of error is

overruled and the judgment of the trial court is affirmed.

                                                 JUDGMENT AFFIRMED.
Meigs App. No. 15CA10                                                          23

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Meigs County Court of Common Pleas 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.
Hoover, J.: Concurs in Judgment and Opinion as to Assignment of Error I;
            Concurs in Judgment Only as to Assignment of Error II.

                                        For the Court,

                                 BY: _______________________________
                                      Matthew W. McFarland, 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.
