[Cite as State v. Meddock, 2017-Ohio-4414.]


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

STATE OF OHIO,                 :
                               :    Case No. 16CA864
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
CHARLES J. MEDDOCK,            :
                               :
    Defendant-Appellant.       :    Released: 06/15/17
_____________________________________________________________
                         APPEARANCES:

Timothy Young, Ohio State Public Defender, and Francisco E. Lüttecke,
Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.

Robert Junk, Pike County Prosecuting Attorney, Waverly, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Charles J. Meddock appeals the sentence and judgment of the

Pike County Court of Common Pleas after a jury found him guilty of one

count of illegal manufacture of drugs, in violation of R.C. 2925.04(A), and

one count of illegal assembly or possession of chemicals for the manufacture

of drugs, in violation of R.C. 2925.041. On appeal, Appellant contends: (1)

the trial court erred when it permitted improper opinion testimony; (2) the

trial court erred by permitting irrelevant and prejudicial evidence regarding a

prior encounter with law enforcement; (3) the trial court erred by overruling
Pike App. No. 16CA864                                                           2

Appellant’s Crim.R. 29 motion; and (4) the trial court’s cumulative errors

violated Appellant’s rights to a fair trial and due process. Upon review, we

find no merit to Appellant’s arguments. As such, the trial court did not err.

Accordingly, we overrule Appellant’s assignments of error and affirm the

judgment of the trial court.

                                   FACTS

      {¶2} On May 1, 2015, Appellant and Donald Entler, Appellant’s

codefendant, were indicted on one count of illegal manufacturing of drugs, a

violation of R.C. 2925.04(A)(3) and a second degree felony, and one count

of illegal assembly of one or more chemicals necessary for the manufacture

of methamphetamine, a violation of R.C. 2925.041 and a third degree

felony. The indictments arose from activities which occurred on or about

April 5, 2015 in Pike County, Ohio. On that date, the Pike County Sheriff’s

office received an anonymous tip of an active methamphetamine lab in the

Morgantown area of Pike County. Pike County deputies responding to the

area caught a strong scent of ether coming eastbound across Morgan’s Fork

Road. The deputies eventually entered a house on 19 North Street owned by

Robert Crabtree. Inside, officers discovered Appellant, Entler, and two

women. Furthermore, officers discovered a one-pot methamphetamine lab

in the second bedroom of the house where Appellant, alone, was hiding.
Pike App. No. 16CA864                                                         3

       {¶3} Appellant entered not guilty pleas to the above charges and

eventually proceeded to trial on January 4 and 5, 2016. The State presented

two witnesses, Corporal Adrian Cottrell and Corporal James Burchett, both

of the Pike County Sheriff’s Office. The defense did not present any

evidence. At the close of trial, Appellant was convicted of both counts.

Appellant was sentenced on January 27, 2016.

      {¶4} At sentencing, the trial court found the counts were allied

offenses of similar import and should be merged for sentencing. The

prosecuting attorney elected to proceed upon the illegal manufacture count,

R.C. 2925.04(A). The trial court then imposed a mandatory prison term of

four years. This timely appeal followed.

                       ASSIGNMENTS OF ERROR

      “I. THE TRIAL COURT ERRED WHEN IT PERMITTED
      OFFICER COTTRELL TO PROVIDE IMPROPER OPINION
      TESTIMONY, DENYING MR. MEDDOCK A FAIR TRIAL
      AND DUE PROCESS OF LAW.

      II. THE TRIAL COURT ERRED WHEN IT ADMITTED
      IRRELEVANT AND PREJUDICIAL EVIDENCE, DENYING
      MR. MEDDOCK HIS RIGHTS TO DUE PROCESS AND A
      FAIR TRIAL.

      III. THE TRIAL COURT VIOLATED MR. MEDDOCK’S
      RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN,
      IN THE ABSENCE OF SUFFICIENT EVIDENCE, IT
      FAILED TO GRANT HIS CRIM.R. 29 MOTIONS AS TO
      THE ILLEGAL MANUFACTURING OF
      METHAMPHETAMINES, AND THE ILLEGAL ASSEMBLY
Pike App. No. 16CA864                                                             4

      OR POSSESSION OF CHEMICALS FOR THE
      MANUFACTURE OF DRUGS (METHAMPHETAMINES).

      IV. THE TRIAL COURT VIOLATED MR. MEDDOCK’S
      RIGHT TO DUE PROCESS AND A FAIR TRIAL
      THROUGH CUMULATIVE ERROR.”

               ASSIGNMENTS OF ERROR ONE AND TWO

      {¶5} Since the first two assignments of error both involve evidentiary

matters, to be reviewed under the same abuse of discretion standard, we

consider them jointly.

                         A. STANDARD OF REVIEW

      {¶6} The admission or exclusion of evidence generally rests within

the trial court's sound discretion. State v. Minton, 4th Dist. Adams No.

15CA1006, 2016-Ohio-5427, ¶ 45; State v. Green, 184 Ohio App.3d 406,

2009-Ohio-5199, 921 N.E.2d 276, ¶ 14 (4th Dist.). Thus, an appellate court

will not disturb a trial court's ruling regarding the admissibility of evidence

absent a clear showing of an abuse of discretion with attendant material

prejudice to defendant. Id. “ ‘A trial court abuses its discretion when it

makes a decision that is unreasonable, unconscionable, or arbitrary.’ ” State

v. Williams, 4th Dist. Jackson No. 15CA3, 2016-Ohio-733, ¶ 17, quoting

State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7,

quoting State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d

971, ¶ 34.
Pike App. No. 16CA864                                                                                        5

                                     B. LEGAL ANALYSIS

1. Did Officer Cottrell give improper expert opinion testimony?

         {¶7} Appellant argues the trial court abused its discretion when it

permitted Officer Cottrell to offer his professional opinion that the materials

found in the second bedroom where Appellant was hiding were ingredients

for the production of methamphetamine and were being used to that end

when the officers arrived. Defense counsel repeatedly objected to Officer

Cottrell’s testimony. Appellant argues that the trial court erred by

permitting the officer to testify as an expert pursuant to Evid.R. 702 and

pursuant to the principles gleaned from Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).1 However,

since the officer was not previously disclosed as an expert and did not

submit an expert report pursuant to Crim.R. 16, defense counsel was

precluded from appropriate cross-examination. Furthermore, Officer

Cottrell’s conclusions were the only link between the common household

items and the alleged methamphetamine lab. Appellant concludes Officer

1
  In Daubert, the United States Supreme Court discussed the question of when expert scientific testimony
is relevant and reliable. There the court was faced with the issue of whether certain scientific evidence was
admissible in a birth defects case. The Daubert court held, under Fed.R.Evid. 702, that expert scientific
testimony is admissible if it is reliable and relevant to the task at hand. Id. at 589, 113 S.Ct. at 2795. To
determine reliability, the Daubert court stated that a court must assess whether the reasoning or
methodology underlying the testimony is scientifically valid. Id. at 592-593, 113 S.Ct. at 2796. In
evaluating the reliability of scientific evidence, several factors are to be considered: (1) whether the theory
or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known
or potential rate of error, and (4) whether the methodology has gained general acceptance. Id. at 593-594,
113 S.Ct. at 2797.
Pike App. No. 16CA864                                                          6

Cottrell’s testimony was well outside the limited circumstances in which lay

witness opinion is proper under Evid.R. 701.

      {¶8} Since the adoption of the Rules of Evidence, both on the state

and federal levels, many courts have used an Evid.R. 701 analysis and have

allowed lay witnesses to testify about, for example, the identity of a drug.

State v. Johnson, 4th Dist. Gallia No. 2014-Ohio-4032, ¶ 38; State v. McKee,

91 Ohio St.3d 292, 2001-Ohio-41, 744 N.E.2d 737. Evid.R. 701 provides:

      “If the witness is not testifying as an expert, his testimony in the
      form of opinions or inferences is limited to those opinions or
      inferences which are (1) rationally based on the perception of
      the witness and (2) helpful to a clear understanding of his
      testimony or the determination of a fact in issue.”

“[C]ourts have permitted lay witnesses to express their opinions in areas in

which it would ordinarily be expected that an expert must be qualified under

Evid.R. 702 * * *. Although these cases are of a technical nature in that they

allow lay opinion testimony on a subject outside the realm of common

knowledge, they will fall within the ambit of the rules requirement that a lay

witness's opinion be rationally based on firsthand observations and helpful in

determining a fact in issue. These cases are not based on specialized

knowledge within the scope of Evid.R. 702, but rather are based upon a

layperson's personal knowledge and experience.” Johnson, supra, at ¶ 38.
Pike App. No. 16CA864                                                        7

      {¶9} Other districts have considered this type of evidentiary

challenge. In State v. Frye, 5th Dist. Stark No. 2006CA00363, 2007-Ohio-

7111, the appellant asserted the trial court committed plain error in allowing

expert testimony from a witness who was not qualified to present alleged

expert testimony about methamphetamine labs. The appellate court cited the

applicable standard of review as to evidentiary matters and later pointed out

that because defense counsel did not move to exclude the alleged improper

evidence, Frye had waived all but plain error. The appellate court explained

the evidentiary rules at ¶ 29:

      “Opinion testimony must be considered in light of Evid.R. 701
      and 702. The opinion must be based upon the perceptions of
      the witness and helpful to the trier of fact. Evid.R. 701. In the
      case of an expert opinion, it must relate to matters outside the
      knowledge, experience, training or education of the trier of fact,
      and be based upon reliable, scientific, technical or other
      specialized information. Evid.R. 702. Stated otherwise, ‘For
      expert testimony to be admitted at trial, it must: 1) relate to
      matters beyond the knowledge or experience possessed by lay
      persons or dispel common misconceptions held by lay persons;
      2) be based on reliable scientific, technical, or other specialized
      knowledge; 3) assist the trier of fact to understand the evidence
      or to determine a fact in issue; 4) be relevant and material to an
      issue in the case; and 5) have a probative value which
      outweighs any prejudicial impact. Evid.R. 702; State v. Daws
      (1994), 104 Ohio App.3d 448, 462, 662 N.E.2d 805.’ State v.
      Thompson, (Sept. 23, 1997), Franklin App. No. 96APA12-
      1660.”

      {¶10} The Frye court observed at ¶ 30:
Pike App. No. 16CA864                                                          8

      “At trial, Ofc. Monigold testified as to his experience in
      investigating methamphetamine labs. Monigold stated he is a
      ‘meth certified response personnel.’ As part of that training,
      Monigold learned how to dismantle process labs, and became
      familiar with the process of making methamphetamine and
      conducting methamphetamine investigations. Monigold
      testified there are different ways to make methamphetamine,
      and described the four-step process commonly used. Although
      individual labs may utilize different chemicals,
      pseudoephedrine or eudoephedrine is the one necessary
      ingredient.”

      {¶11} The Frye court concluded that the trial court's admission of Ofc.

Monigold's testimony did not constitute plain error.

      “Ofc. Monigold's testimony related to matters beyond the
      knowledge and experience of the jury; was based upon
      specialized knowledge and training; assisted the trier of fact in
      understanding the evidence and determining a fact in issue; was
      relevant and material; and had a probative value which
      outweighed any prejudicial impact. Accordingly, such
      testimony was properly admitted as expert testimony.” Id. at
      ¶ 33.

      {¶12} Similarly, in State v. Cox, 12th Dist. Clermont No. CA2008-03-

028, 2009-Ohio-928, the appellant argued the trial court erred in permitting

an agent to testify as to the manufacture of methamphetamine without being

qualified as an expert witness. The appellate court was also limited to

consideration of the argument under the plain error standard of review, and

acknowledged that an alleged error does not constitute plain error unless, but

for the error, the outcome of the trial clearly would have been otherwise. Id.

at 13. Gragg; McKee; Crim.R. 52(B).
Pike App. No. 16CA864                                                             9

      {¶13} The Cox court found its review of the record yielded no

indication that the trial court committed plain error in violation of Evid.R.

701 by admitting the testimony of the agent. The record demonstrated that

[Agent Sorbello] testified as to his education, training, and experience in the

field of identifying methamphetamine, including the production of

methamphetamine. He testified that he had completed 282 hours of special

courses pertaining to the investigation, dismantling, and supervision of

“clandestine drug laboratory operations,” and had been involved in 500

cases involving methamphetamine. Id. at 46.

      “Ohio courts have previously held that “the experience and
      knowledge of a * * * lay witness can establish his * * *
      competence to express an opinion on the identity of a controlled
      substance if a foundation for this testimony is first established.”
      McKee at syllabus; Gragg at ¶ 40-41, 878 N.E.2d 55.”

      {¶14} The appellate court found Agent Sorbello's testimony as to his

education, training, and experience qualified him to testify in this case as to

the production process of methamphetamine, including the quantity of

methamphetamine that could be produced utilizing the pseudoephedrine

discovered in the appellant's possession. Id. at 46.

       {¶15} In State v. Williams, 9th Dist. Summit No. 25716, 2011-Ohio-

6604, the appellant objected to a detective's testimony that “[w]ithout a

doubt there was definitely a methamphetamine lab at [the] Beechwood
Pike App. No. 16CA864                                                      10

Circle [address].” However, the appellate court found that the detective did

not need to be qualified as an expert under Evid.R. 702 because the

statement constituted lay opinion testimony permitted by Evid.R. 701. After

citing the rule, the appellate court found:

      “Detective Anderson's testimony was admissible as lay opinion
      because it met both of the requirements of Evid.R. 701: it was
      based on his personal observation of the items taken from the
      garbage outside the residence and found within the house, and it
      aided the jury's understanding of the significance of those items
      when found together. See, e.g, State v. Drummond, 111 Ohio
      St.3d 14, 2006-Ohio-5084, at ¶ 222 (summarizing situations in
      which a police officer's lay opinion testimony is proper when
      based on the perception of evidence at a crime scene).”

      {¶16} In Williams, the appellant also asserted an ineffective assistance

claim. Willams argued his counsel was ineffective in that he failed to object

to the detective’s testimony. The appellate court emphasized at ¶ 15:

      “[B]ecause Detective Anderson's testimony about
      methamphetamine production was proper under Evid.R. 701,
      there was no reason for counsel to object. When a police
      officer provides general testimony about the process of
      manufacturing methamphetamine that is based on personal
      observation, that testimony is “certainly helpful to the trier of
      fact in identifying the role of the ingredients in the process and
      the equipment necessary in production of methamphetamine.”
      State v. Harper, 5th Dist. No. 07 CA 151, 2008-Ohio-6926, at
      ¶ 43. As such, it is lay witness testimony within the purview of
      Evid.R. 701. Id. at ¶ 37-43. Failure to object to such testimony
      on the part of defense counsel does not constitute ineffective
      assistance. Id. at ¶ 44.

      ***
Pike App. No. 16CA864                                                           11

      In this case, Officer Williams testified regarding the process
      used to manufacture methamphetamine and the materials
      commonly used in that process. His testimony provided the
      context for the jury to appreciate the significance of otherwise
      common household items found together in [Ms. Buck’s]
      residence. It was well within the scope of Evid.R. 701* * *.”
      Id. at ¶ 16.

      {¶17} More recently in State v. Maust, 8th Dist. Cuyahoga No.

103182, 2016-Ohio-3171, Maust argued that the trial court abused its

discretion in allowing Vedder, a firefighter, to offer expert testimony as to

the methamphetamine process, despite not having complied with Crim.R.

16(K) by providing an expert report prior to trial and not being qualified

under Evid.R. 702. The state countered that Vedder was not offered as an

expert witness; nor did his testimony constitute expert testimony. The state

maintained that Vedder was a fact witness, who testified to his observations

and actions, such as taking photographs, and simply relayed the relevancy of

his actions—all of which he was permitted to do under Evid.R. 701. The

Eighth District Court of Appeals agreed.

      {¶18} After defining Evid.R. 701, the court explained at ¶ 18:

      “Under Evid.R. 701, courts have permitted lay witnesses to
      express their opinions in areas in which it would ordinarily be
      expected that an expert must be qualified under Evid.R. 702.
      State v. Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio-
      5172, ¶ 74, citing State v. McKee, 91 Ohio St.3d 292, 744
      N.E.2d 737 (2001). Indeed, this court has consistently
      recognized that the testimony of a state's witness, who is not
      presented as an expert, is properly admitted under Evid.R. 701
Pike App. No. 16CA864                                                         12

      when (1) the testimony is based on the witness's training or
      experience, (2) the testimony relates to the witness's personal
      observations with the investigation, and (3) the testimony is
      helpful to determine a fact at issue. See, e.g., State v. Wilkinson,
      8th Dist. Cuyahoga No. 100859, 2014-Ohio-5791, ¶ 52-53;
      Primeau at ¶ 75; State v. Cooper, 8th Dist. Cuyahoga No.
      86437, 2006-Ohio-817, ¶ 18.”

      {¶19} The Eighth District Court of Appeals also noted that appellate

courts have similarly determined that “some testimony offered by

officers/detectives is lay person witness testimony even though it is based on

the officer/detective's specialized knowledge.” Id. at 19, quoting State v.

Johnson, 7th Dist. Jefferson No. 13JE5, 2014-Ohio-1226, ¶ 57 (Detective's

testimony as to gang activity was permissible under Evid.R. 701 based on

detective's personal knowledge and experience in the field.); see also State v.

McClain, 6th Dist. Lucas No. L–10–1088, 2012-Ohio-5264, ¶ 13, and State

v. Williams, supra, at ¶ 11.

      {¶20} The Maust court concluded at ¶ 20:

      “Our review of the record reveals that the state properly laid a
      foundation for Vedder's testimony and that his testimony was
      directly related to the actions that he personally undertook at the
      scene. Specifically, Vedder—apart from his 40 years as a
      firefighter with the Chagrin Falls Fire Department and 25 years
      as a hazardous materials specialist—testified as to his training
      and experience through the Ohio Fire Academy in
      methamphetamine labs. Further, Vedder also has served as an
      instructor for the Ohio Fire Academy, teaching specifically
      about methamphetamine labs and the chemicals that are
      involved, the precursor chemicals, and the hazards that are
      present from those chemicals. Therefore, Vedder's testimony
Pike App. No. 16CA864                                                         13

      that salt and Coleman lantern fluid are used in the
      methamphetamine process as well as his explanation of the one-
      pot method for making methamphetamine was based on his
      own personal knowledge and experience as established by the
      state. Additionally, Vedder's testimony related specifically to
      his own actions on the scene and why he undertook such
      actions, i.e., photographing items that are used in the
      methamphetamine process. Further, Vedder's testimony was
      helpful to determine the significance of the items found in
      Maust's bedroom. Accordingly, we find no error in the state's
      failure to provide an expert report with respect to Vedder; nor
      did the trial court abuse its discretion in allowing him to testify
      on these matters.”

      {¶21} Here, we have reviewed the record and find that Corporal

Cottrell’s testimony was properly admitted lay testimony under Evid.R. 701

because the testimony was based on his training and experience, was related

to his personal observations during the investigation, and was helpful to

determination of facts in issue. The State laid a foundation for Cottrell’s

testimony. Cottrell testified he had completed basic peace officer training in

2011 and received his state certification. He was hired by the Pike County

Sheriff’s Department in January 2012. He had just been promoted to

corporal. Corporal Cottrell’s duties included supervising the deputies on his

shift, reviewing reports, and correcting paperwork.

      {¶22} Specifically, Corporal Cottrell had received Advanced

Clandestine chemical lab training at the Bureau of Criminal Investigations in

Columbus in 2014. The training lasted two weeks and he passed a written
Pike App. No. 16CA864                                                        14

test at the end. He was trained on the entire process of methamphetamine

production, and the “one-pot method.” He was also trained as to how to

package the hazardous materials for disposal. He had investigated

approximately 50 actual methamphetamine labs, and observed the “one-pot”

cook labs during the course of his duties. Corporal Cottrell testified the

“one-pot” method takes 30-60 minutes and some common ingredients are

pseudoephedrine and drain opener.

      {¶23} Corporal Cottrell’s testimony also related to his personal

observations at the house located on 19 North Street in the Morgantown area

of Pike County. Cottrell testified after they received the tip and were en

route to investigate, he caught the strong scent of ether coming eastbound

across Morgan’s Fork Road. He testified the smell of ether can be indicative

of a methamphetamine lab. Based on the smell, he and other officers

patrolled the area and determined the smell was coming from the house at 19

North Street owned by Robert Crabtree. Cottrell and another officer

attempted to make contact at the house. Finally, the homeowner was found

nearby and gave permission to enter the residence. Upon entering the house

and going from room to room, Cottrell found 2 females. Donald Entler was

hiding in the closet of a main bedroom. Appellant was hiding under the bed

in a second bedroom.
Pike App. No. 16CA864                                                           15

      {¶24} Here, Corporal Cottrell’s testimony was helpful to the jury’s

understanding and determination of facts in issue. Cottrell testified in the

second bedroom, on a dresser, there was a soda bottle with a tube coming

out of the top. It was giving off gas at the end of the hose and fumes could

be seen in the air. Cottrell testified he had seen many of these and had never

seen a pop bottle with a hose coming out that was not connected to a

methamphetamine lab. Based on his training, Cottrell identified this bottle

as an acid gas generator, a part of the one-pot method of producing

methamphetamine. Cottrell testified the generator is used to convert the oil

form of methamphetamine into usable water dissolvent form.

      {¶25} Cottrell testified he performed a field test of liquid found in a

mason jar in bedroom two. The jar is used in the initial assembly of the one

pot method. He opined it was flammable liquid. The acid gas generator is

used in the second phase. Based on his training and experience with

multiple clandestine meth labs, he opined the acid generator was assembled

and to the point where the liquid was extracted.

      {¶26} Corporal Cottrell also identified Exhibit 11, a photograph of a

backpack on the floor inside bedroom 2. He testified a one-pot bottle, an

open bag of ammonium nitrate, lye, and starting fluid were found inside the

back pack.
Pike App. No. 16CA864                                                          16

      {¶27} We find Corporal Cottrell’s testimony regarding the one-pot

method of methamphetamine production was properly admitted under

Evid.R. 701. As in Williams, supra, Corporal Cottrell testified regarding the

process used to manufacture methamphetamine and the materials commonly

used for that process. His testimony was based on his training, certification,

and experience of identification of clandestine methamphetamine labs. His

testimony was also based upon his observations at the scene of Appellant’s

arrest in April 2015. And, as in Williams, his testimony provided the context

for the jury to appreciate the significance of otherwise common household

items found together in the house, and specifically the bedroom where

Appellant was hiding.

       {¶28} We find Corporal Cottrell’s testimony was proper lay opinion

well within the providence of Evid.R. 601. Accordingly, we find the trial

court did not abuse its discretion in allowing Corporal Cottrell’s testimony

regarding clandestine methamphetamine labs and his observations upon

arriving at 19 North Street. As such, we find no merit to Appellant’s first

assignment of error and it is hereby overruled.

2. Did Officer Cottrell give improper and prejudicial testimony about the
marijuana pipe?

      {¶29} In Appellant’s second assignment of error, he first contends the
Pike App. No. 16CA864                                                           17

jury heard unrelated and prejudicial testimony about a marijuana pipe found

in the second bedroom. The jury heard evidence that Appellant smoked

marijuana, and a photograph of the marijuana pipe was admitted. The only

evidence linking Appellant to the second bedroom was the marijuana pipe.

Counsel argues the irrelevant material was prejudicial character evidence.

Counsel concludes that since there was no overwhelming evidence of guilt,

the photograph of the pipe, along with other matters to be discussed below,

was overly prejudicial.

      {¶30} The State responds that the photograph of the marijuana pipe

was properly admitted because it was relevant evidence used to make the

existence of a fact of consequence to the determination of the action more

probable than it would be without the evidence. Appellant claimed he was

only in the room to hide from law enforcement. However, the marijuana

pipe establishes a link between Appellant and the second bedroom.

      {¶31} The trial transcript reveals that the State asked Corporal Cottrell

to identify Exhibits 17, 18, and 19, which he identified as “just basically a

homemade marijuana pipe that was located in the bedroom, as well.” While

counsel interposed an objection shortly thereafter to a photograph of the acid

generator on top of the dresser in bedroom 2, there was no objection to the

photograph of the marijuana pipe until the close of trial. Later, in Corporal
Pike App. No. 16CA864                                                         18

Burchett’s testimony, a DVD of his recorded interview with Appellant was

played for the jury. In the DVD, Appellant was questioned as to whether he

smoked pot. While his verbal answer is inaudible, Appellant can be seen

shaking his head affirmatively. Counsel did not interpose an objection as to

the playing of the DVD.

      {¶32} When defense counsel objected to the admission of the

marijuana pipe photographs at the close of trial, counsel argued Appellant

was not charged with possession of drug paraphernalia and the photograph

was confusing and prejudicial. The court overruled the objection as to

Exhibit 17 and sustained objections to Exhibits 18 and 19 as “surplusage.”

Counsel did not object to admission of the DVD.

      {¶33} In State v. Rotarius, 8th Dist. Cuyahoga No. 2002-Ohio-666,

the appellate court discussed the admissibility of “other acts” evidence at

trial. Evid.R. 404(B), dealing with the admissibility of “other acts,” states:

      “Evidence of other crimes, wrongs or acts is not admissible to
      prove the character of a person in order to show that he acted in
      conformity therewith. It may, however, be admissible for other
      purposes, such as proof of motive, opportunity, intent,
      preparation, plan, knowledge, identity, or absence of mistake or
      accident.

      {¶34} R.C. 2945.59, dealing with the admission of “other acts” in the

context of a criminal trial, provides:
Pike App. No. 16CA864                                                           19

      “In any criminal case in which the defendant's motive or intent,
      the absence of mistake or accident on his part, or the
      defendant's scheme, plan, or system in doing an act is material,
      any acts of the defendant which tend to show his motive or
      intent, the absence of mistake or accident on his part, or the
      defendant's scheme, plan, or system in doing the act in question
      may be proved, whether they are contemporaneous with or prior
      or subsequent thereto, notwithstanding that such proof may
      show or tend to show the commission of another crime by the
      defendant.”

      “If the other act does in fact ‘tend to show’ by substantial proof
      any of those things enumerated, such as proof of motive,
      opportunity, intent, preparation, plan, knowledge, identity or
      absence of mistake or accident, then evidence of the other act
      may be admissible.” Rotarius, supra, at ¶ 15.

      {¶35} Courts, while strictly construing Evid.R. 404(B) and R.C.

2945.59, and resolving doubts against admissibility, have applied the above

rules in such a way as to attempt to minimize the amount of prejudice the

admission of evidence of prior conduct will have on the disposition of the

current charges faced by an accused. “It is a well established rule that in a

criminal trial evidence of previous or subsequent criminal acts, wholly

independent of the offense for which a defendant is on trial, is inadmissible”

to prove that a defendant has an undesirable trait, disposition or propensity

toward the commission of a certain type of crime. Id. “Further, [the Ohio

Supreme Court] has stated that, ‘evidence of other acts of a defendant is

admissible only when it “tends to show” one of the matters enumerated in
Pike App. No. 16CA864                                                           20

the statute and only when it is relevant to proof of the guilt of the defendant

of the offense in question.” ’ Id. at 18.

      {¶36} Rotarious was convicted of possession of marijuana and

possession of drugs for sale. Some of the evidence used against him was his

travel history, the hotel room he reserved where a large amount of marijuana

was found, and his wallet and other identifiers in the hotel room. On appeal,

Rotarius complained that a Drug Enforcement Administration agent was

allowed to testify about finding a glass pipe in a bag with Rotarius' name tag

in the hotel room, and that the pipe tested positive for the presence of

methamphetamine. Rotarius claimed that this evidence tended to show

general bad character that tainted the decision-making ability of the jury by

prejudicially depicting him as a person with a propensity for drugs and drug-

related crime.

      {¶37} Rotarius objected to the admission of this testimony against the

backdrop of his own argument at trial, that others may have had access to his

hotel room, with his permission, and that any contraband recovered from the

room was placed there upon the initiative of someone else, without his

knowledge or consent. The appellate court disagreed. The court found, in

light of the complete trial record and the extremely limited amount of

testimony that this assigned error referenced (a total of two questions), the
Pike App. No. 16CA864                                                            21

argument was not well taken. The court found any prejudice, in light of the

compelling, obvious evidence presented against Rotarius, such as his

personal identification in the hotel room, his flights and travel history, and

the testimony of his co-defendant Richardson, was de minimus.

      {¶38} We find this to be a closer case than that presented by the facts

in Rotarius. The court in Rotarius had other compelling evidence to

consider. Here, ostensibly, Appellant’s only connection to the room he was

hiding in is the marijuana pipe. However, given Appellant’s admission that

he used marijuana, and given the failure to object to the playing or

admission of the DVD, we find the photograph of the marijuana pipe was

admissible because it did tend to show a substantial connection to the second

bedroom and the absence of any mistake that Appellant was found there.

For the foregoing reasons, we find no merit to Appellant’s argument that

unfair prejudice outweighed the photograph’s probative value.

3. Did Corporal Cottrell give improper and prejudicial testimony regarding a
prior encounter with Appellant?

      {¶39} During direct examination, Corporal Cottrell testified regarding

State’s Exhibit 12, a photograph. He testified: “This is the bed inside the

bedroom. Just another view of it. The mask is laying there. Uh, there’s a

leather jacket, uh, the knives. Uh, the last time I dealt with the Defendant,

he had a knife.” Defense counsel objected, moved to strike the testimony,
Pike App. No. 16CA864                                                        22

and moved for a mistrial. Counsel argued the prior encounter testimony was

highly inflammatory and prejudicial. The State argued that it would present

testimony that Appellant had been removed from the exact same room

previously and under Evid.R. 404(B), the State would show there was no

mistake. Defense counsel stated that information had not been provided to

her. The trial court ultimately overruled the motion for a mistrial and

sustained the objection. When the jury was brought back in, the trial court

instructed:

      “Uh, there was an objection registered and a motion for mistrial
      in the presence of the jury just before you were asked to uh,-
      and a motion to strike- just before we went on recess, ladies and
      gentlemen. The court is sustaining the objection to the last
      statement of the officer and ordering it striken. The jury will
      disregard that last statement just made uh, prior to the defense
      counsel’s uh objection and motion to strike. The jury will
      disregard that, not consider that statement for any purpose.”

      {¶40} Appellant contends the testimony regarding a “prior encounter

with a knife” was unfairly prejudicial and the trial court’s instruction could

not have cured the damage. The State argues that the knife and previous

encounter had nothing to do with any of the offenses charged and would

have had no bearing on the jury.

      {¶41} The First District Court of Appeals considered a similar

scenario and the “other acts” analysis, in State v. Dorsey, 1st Dist. Hamilton

No. C-110623, 2012-Ohio-4043. Dorsey appealed a misdemeanor
Pike App. No. 16CA864                                                            23

conviction for possession of criminal tools. Dorsey argued that the trial

court erred by admitting the investigator’s testimony involving other acts

that occurred in the summer of 2010. Dorsey argued the testimony was

neither probative of his intent on October 27, 2010, nor was it admitted for

any purpose other than an attempt to show Dorsey's general propensity to

commit crimes, a purpose specifically prohibited by Evid.R. 404(A) and

R.C. 2945.59.

         {¶42} The appellate court observed that the only witness at trial, an

investigator, testified that in many of the automobile thefts that he had

investigated through the years, a screwdriver had been shoved into the

stripped steering column and used as the key, and a hammer had been found

on the floor board. Further, the investigator also testified, over Dorsey's

objection, that he had had contact with Dorsey sometime in the summer of

2010, when he had “charged” him with receiving stolen property for being in

a stolen automobile with a stripped steering column. The officer admitted

on cross-examination that he had not observed Dorsey breaking into an

automobile on October 27, 2010, that he was not aware that an automobile

theft had been attempted or had occurred on that date, and that he had never

known anyone to use a screwdriver or hammer to steal food from a store

shelf.
Pike App. No. 16CA864                                                            24

      {¶43} The appellate court observed that evidence of other acts,

crimes, or wrongs is not admissible to prove the character of a person to

show acts in conformity on a particular occasion, but it may be admissible

for other purposes, such as those listed in Evid.R. 404(B) and R.C. 2945.59.

Id. at ¶ 12. See Evid.R. 404(A) and (B); State v. Griffin, 142 Ohio App.3d

65, 71-72, 753 N.E.2d 967 (1st Dist.2001). Other bad acts may be

admissible “to establish circumstantially either an element of the crime or a

material fact at issue.” Dorsey, supra, quoting Griffin at 71, 753 N.E.2d 967.

      {¶44} The Dorsey court recognized, however, a trial court must

strictly construe this evidence against admissibility. Id. at 13. See State v.

DeMarco, 31 Ohio St.3d 191, 194, 509 N.E.2d 1256 (1987). The other-act

evidence must also meet the other requirements of admissibility set forth in

the rules of evidence. See Evid.R. 403; Evid.R. 402. Applying the abuse of

discretion standard, the Dorsey court observed the Supreme Court of Ohio

defined an “unreasonable” decision as one that is not supported by a “sound

reasoning process.” AAAA Enterprises, Inc. v. River Place Community

Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990), cited

in Morris, at ¶ 14.

      {¶45} At Dorsey’s trial, the state argued that the other-acts testimony

was probative of Dorsey's intent to use the hammer and screwdrivers for a
Pike App. No. 16CA864                                                         25

criminal purpose—an element of the offense of possessing criminal tools—

and, therefore, admissible as an exception set forth in Evid.R. 404(B). The

trial court implicitly agreed and admitted the evidence over Dorsey's

objection. However, the appellate court found the challenged testimony was

not probative of the statutory inference set forth in R.C. 2923.24(B)(3),

because it did not demonstrate the circumstances under which Dorsey

possessed the hammer and screwdrivers in late October 2010. Id. at 17.

      {¶46} Further, the testimony involved Dorsey's mere presence in a

stolen automobile with a stripped steering column one-to-four months before

the investigator found him in possession of the hammer and screwdrivers.

Dorsey was not “charged” with automobile theft at that time and there was

no testimony that anyone, including Dorsey, had used a screwdriver or

hammer to steal that automobile. At best, the State's theory of relevance

involved an impermissible inference upon an inference. Dorsey, supra, at

18; See State v. Cowans, 87 Ohio St.3d 68, 78–79, 717 N.E.2d 298 (1999).

As such, it was not admissible to demonstrate Dorsey's intent or for any of

the purposes recognized in Evid.R. 404(B), especially without any nexus

between those facts and Dorsey's possession of the articles in late October

2010. The Dorsey court concluded there was no sound reasoning process to

support the trial court's admission of the investigator’s testimony.
Pike App. No. 16CA864                                                                                  26

Therefore, the court's decision to admit the challenged testimony was

unreasonable and an abuse of discretion.2

        {¶47} In this case, we agree with Appellant that the vague

description of a “prior encounter with a knife” was not probative of his

intent on April 5, 2015 and its elicitation was more than likely an attempt to

show his general propensity to commit crime. As such, the testimony is

forbidden by Evid.R. 404(A) and R.C. 2945.59. However, as in Rotarius,

supra, we note shortly after defense counsel objected and the court removed

the jury and conducted a bench conference, the trial court issued a limiting

instruction that the statement regarding the prior encounter was to be

disregarded. Furthermore, during the closing instructions, the trial court

reiterated that statements or answers stricken by the court or which they

were instructed to disregard were not evidence and must be treated as though

they had not been heard.

        {¶48} “A jury is presumed to follow the instructions, including

curative instructions, given it by a trial judge.” State v. Plott, 3rd Dist.

Seneca Nos. 13-15-39, 13-15-40, 2017-Ohio-38, ¶ 122, quoting State v.

Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995). In Appellant’s case,


2
 See, e.g., State v. Huff, 145 Ohio App.3d 555, 566, 763 N.E.2d 695 (1st Dist.2001); State v. Zamorski, 141
Ohio App.3d 521, 525, 752 N.E.2d 288 (1st Dist.2000); State v. Echols, App.3d 728, (1st Dist.1998);
Eckert v. Jacobs, 1st Dist. No. C910445, 1992 Ohio App. LEXIS 5920, 1992 WL 355448, 128 Ohio
App.3d 677, 698–699.
Pike App. No. 16CA864                                                         27

the trial court instructed the jury twice to disregard testimony which was

stricken from the record. In the absence of any indication to the contrary,

we presume the jury followed the court’s instructions. As such, we find no

merit to Appellant’s argument. Based on the foregoing, we overrule

Appellant’s second assignment of error.

                    ASSIGNMENT OF ERROR THREE

      {¶49} Appellant argues the trial court erred when it denied his

motions for acquittal for the charges of illegal manufacture of

methamphetamine and illegal assembly or possession of chemicals

necessary for manufacture of methamphetamine. He argues the evidence is

insufficient to demonstrate that Appellant was the individual responsible for

the methamphetamine lab in question. Specifically he argues the evidence

that he was hiding in the second bedroom fails to establish any connection

between his presence and knowing participation in illegal activity.

However, the State contends that the evidence demonstrates that none of the

items consistent with the manufacture of methamphetamine were found in

any area of the house besides bedroom two, where Appellant was hiding and

fumes and gases were being actively omitted pursuant to the one-pot lab.

The State asserts any rational trier of fact could have found each element,

including “knowledge” proven beyond a reasonable doubt.
Pike App. No. 16CA864                                                            28

                        A. STANDARD OF REVIEW

      {¶50} Under Crim.R. 29(A), “[t]he court on motion of a defendant

* * *, after the evidence on either side is closed, shall order the entry of

acquittal * * *, if the evidence is insufficient to sustain a conviction of such

offense or offenses.” State v. Wright, 4th Dist. Athens No. 15CA31, 2016-

Ohio-7654, ¶ 21. “A motion for acquittal under Crim.R. 29(A) is governed

by the same standard as the one for determining whether a verdict is

supported by sufficient evidence.” Id. quoting State v. Tenace, 109 Ohio

St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37; State v. Husted, 2014-

Ohio-4978, 23 N.E.3d 253, ¶ 10 (4th Dist.). “When a court reviews a record

for sufficiency, ‘[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.’ ” Id. at 22, quoting State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-

1019, 9 N.E.3d 930, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus; Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781 (1979). In making its ruling a court does not weigh

the evidence but simply determines whether the evidence, if believed, is

adequate to support a conviction. In other words, the motion does not test

the rational persuasiveness of the state's case, but merely its legal adequacy.
Pike App. No. 16CA864                                                         29

State v. Reyes–Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338,

¶ 15.

                            B. LEGAL ANALYSIS

        {¶51} Appellant was convicted of R.C. 2925.04, illegal manufacture,

which states:

        “(A) No person shall knowingly cultivate marihuana or
        knowingly manufacture or otherwise engage in any part of the
        production of a controlled substance.”

        {¶52} He was also 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.”

        {¶53} Furthermore, R.C. 2925.041(B) 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.”

        {¶54} The evidence against Appellant is entirely circumstantial and

we begin by recognizing that it is well-established, however, that “a

defendant may be convicted solely on the basis of circumstantial evidence.
Pike App. No. 16CA864                                                         30

Wickersham, supra, ¶ 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

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 (5 Ed.1979) 221.

      {¶55} “ ‘[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.’ ” Wickersham, supra, at 10, quoting 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”).

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

that an individual has or had an item within his immediate physical
Pike App. No. 16CA864                                                      31

possession.’ ” Wickersham, supra, at 11, quoting 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.

      {¶57} By the end of Appellant’s trial, the jury had heard the following

evidence:

      1) Corporal Cottrell found Appellant and 3 others in the 19
      North Street residence, in the presence of the strong smell of
      ether.

      2) Appellant was found to have an outstanding warrant and was
      found hiding under the bed in a second bedroom, where no
      other person was located.
Pike App. No. 16CA864                                                    32

     3) In the second bedroom on a dresser, there was a soda bottle
     with a tube coming out of the top, an acid gas generator
     emitting fumes, State’s Exhibit 7. Based on his training,
     Cottrell identified this as the second part of the one-pot method
     of producing methamphetamine.

     3) Cottrell identified Exhibit 9, the closet of bedroom two. He
     identified Exhibit 10, a mason jar of liquid inside the cabinet
     inside bedroom two. The jar would be used in the initial
     assembly of the one-pot method. Cottrell tested the liquid on
     the scene and determined it was flammable.

     4) Cottrell identified Exhibit 11, a backpack lying on the
     ground inside the second bedroom. A one-pot bottle, an open
     bag of ammonium nitrate, lye and starting fluid were inside the
     backpack. Cottrell identified Exhibits 13 and 14, the one-pot
     bottle out of the backpack.

     5) Cottrell also identified the following:

           -State’s Exhibit 1, drain opener and salt used in the acid
           generator;

           -State’s Exhibit 4, aluminum foil used to produce the
           hydrochloric gas or also used to help smoke
           methamphetamine;

           -State’s Exhibits 15 and 16, ammonium nitrate, a key
           ingredient for the one-pot method, from an opened cold
           pack;

           -State’s Exhibit 27, coffee filters used to filter final
           product, on top of the dresser in bedroom two;

           -State’s Exhibit 17, the homemade marijuana pipe; and,

           -State’s Exhibits 30 and 31, sodium chloride, cleansing
           water used to clean syringes. Cottrell testified
           methamphetamine can be inhaled, administered with a
           syringe, or taken orally.
Pike App. No. 16CA864                                                         33

      6) Corporal James Burchett of the Pike County Sheriff’s Office
      corroborated Corporal Cottrell’s testimony about the
      anonymous tip and the smell of ether outside of Robert
      Crabtree’s home.

      7) Corporal Burchett identified Appellant and State’s Exhibit
      32, a DVD he recorded of his interview with Appellant. During
      the interview, Appellant acknowledged that he knew he had
      warrants and that he smokes pot. He denied using
      methamphetamine or knowing who was manufacturing
      methamphetamine in the house.

      {¶58} After reviewing the record, and viewing the evidence in a light

most favorable to the prosecution, we find any rational trier of fact could

have found the essential elements of the counts against Appellant proven

beyond a reasonable doubt. Appellant has argued that there was insufficient

evidence to prove his knowing involvement with the methamphetamine lab

found on the premises. “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.” State v. Evans-

Goode, 4th Dist. Meigs No. 15CA10, 2016-Ohio-5361, ¶ 8; R.C.

2901.22(B). “[W]hether a person acts knowingly can only be determined,

absent a defendant's admission, from all the surrounding facts and

circumstances * * *.” Garner, 74 Ohio St.3d 49, 60, 656 N.E.2d 623 (1995),

quoting State v. Huff, 145 Ohio App.3d 555, 563, 763 N.E.2d 695 (1st
Pike App. No. 16CA864                                                           34

Dist.2001). Furthermore, regarding circumstantial evidence of intent, it has

been stated:

      “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-2298, ¶ 41.

      {¶59} In State v. Cuffman, 3rd Dist. Crawford Nos. 3-11-01, 3-11-02,

2011-Ohio-4324, the appellate court observed: “A defendant's mere

presence in an area where drugs are located does not conclusively establish

constructive possession.” Id. at 32, quoting Cooper, at ¶ 26, citing State v.

Cola, 77 Ohio App.3d 448, 450, 602 N.E.2d 730 (11th Dist.1991);

Cincinnati v. McCartney, 30 Ohio App.2d 45, 48, 281 N.E.2d 855 (1st

Dist.1971). On the other hand, “readily usable drugs found in very close

proximity to a defendant may constitute circumstantial evidence and support

a conclusion that the defendant had constructive possession of such drugs.”

Cuffman, supra, quoting State v. Barr, 86 Ohio App.3d 227, 235, 620

N.E.2d 242 (8th Dist.1993), citing State v. Pruitt, 18 Ohio App.3d 50, 480
Pike App. No. 16CA864                                                                                35

N.E.2d 499 (8th Dist. 1984). See also State v. Stewart, 3rd Dist. No. 13–08–

18, 2009-Ohio-3411, ¶ 51.

        {¶60} At Cuffman’s trial for possession of heroin, three officers

testified to the events leading up to Cuffman's arrest. One officer testified

that the two aluminum foil balls he found at Cuffman's feet were tested and

found to contain 0.33 grams of heroin. He further testified that another

officer located a third aluminum foil ball five to ten feet away from

Cuffman. Cuffman denied using heroin. The appellate court concluded that

a rational trier of fact could have concluded that Cuffman possessed heroin.

Cuffman was the only person in very close proximity to the heroin besides

the law enforcement officers.3

        {¶61} In State v. Weckner, 12th Dist. Brown No. CA2001-06-009,

2002-Ohio-1012, Weckner was one of four individuals in a car that’s search

revealed a plastic gas can, coffee filters, drain cleaner, plastic bottle with a

hose taped to it, glass mason jars with substances in them, rubber gloves,

3
  However, in this case, the jury was presented with more than evidence of Cuffman's presence near the
area in which the drugs were located. The jury was presented with evidence that two of the foil balls
containing heroin were found lying at Cuffman's feet; in other words, in “very close proximity” to
Cuffman. Barr, 86 Ohio App.3d at 235, citing Pruitt, 18 Ohio App.3d 50; Stewart, 2009-Ohio-3411, at
¶ 51. The jury also heard testimony that the foil balls containing heroin were found after a physical
struggle occurred between Cuffman and the officers. The jury also heard evidence that Cuffman was
observed entering and leaving a known drug house after being there for no more than five minutes—typical
of a drug transaction—just minutes before he was found with the heroin. The jury also heard evidence of
Cuffman's nervous behavior during the stop; specifically, evidence that Cuffman would not remove his left
hand from his pocket and later removed the contents of the pocket but tightly cupped the contents in his
hand. All of this circumstantial evidence, along with the very close proximity of the drugs to Cuffman's
person, could lead a rational trier of fact to conclude that Cuffman constructively possessed the heroin.
Pike App. No. 16CA864                                                          36

batteries, starter fluid, Drain-o, salt and a plastic milk crate filled with mason

jars. The items were suspected to be a portable methamphetamine lab. No

one in the vehicle acknowledged ownership of the items.

      {¶62} After an investigation, Weckner was arrested and charged with

one count of aggravated possession of methamphetamines in violation of

R.C. 2925.11(A) and one count of manufacturing methamphetamines in

violation of R.C. 2925.04(A). Weckner was later convicted of both counts.

On appeal, Weckner argued (1) his convictions were against the manifest

weight of the evidence, (2) that the State did not prove that he had

possession of the drugs or that he was involved in the manufacture of the

methamphetamine, and (3) that no evidence linked him to the drugs or the

lab components that were found.

      {¶63} The Weckner court, as did the Cuffman court, cited Pruitt, 480

N.E.2d 499, for the principle that “[R]eadily usable drugs in close proximity

of an accused may constitute sufficient and direct circumstantial evidence to

support a finding of constructive possession.” See also Hamilton v. Barnett

(Aug. 3, 1998), Butler App. No. CA97-11-222, unreported. The appellate

court also noted the same reasoning applies to the discovery of other

contraband in close proximity to the defendant. State v. Williams (Dec. 7,

2000), Cuyahoga App. No. 76816, unreported. The appellate court noted the
Pike App. No. 16CA864                                                                                  37

evidence before the jury included the fact that Weckner was a passenger in a

vehicle that contained the ingredients and tools necessary to manufacture

methamphetamines. In addition, inside the vehicle were several mason jars

containing methamphetamines in varying stages of manufacture, including

some jars containing a completed product.4 The appellate court found the

jury did not lose its way by finding appellant guilty of both possession and

manufacture of methamphetamines.

        {¶64} In State v. Isaac, 5th Dist. Richland No. 15CA87, 2016-Ohio-

7376, the defendant maintained the State had failed to prove the culpable

mental state of “knowingly” in two counts of illegal manufacture of

methamphetamine and illegal assembly or possession. Isaac, who was

temporarily staying with a friend while experiencing marital problems,

asserted she had no knowledge of the methamphetamine lab in the basement

of her friends’ residence. Isaac maintained the State did not demonstrate her

knowledge of the methamphetamine lab or the possession of chemicals in

the basement. The appellate court disagreed, holding at ¶ 57:

        “Viewing the evidence in a light most favorable to the
        prosecution, we find a rational trier of fact could have found the
        essential elements of the charges proven beyond a reasonable
        doubt. * * * Testimony of [her friend’s husband] at trial

4
  Furthermore, at Weckner’s trial, testimony revealed that this vehicle was seen near Weckner’s residence
on several occasions. Testimony also revealed Weckner’s comments evidencing an awareness of the
contents of the vehicle.
Pike App. No. 16CA864                                                                                        38

         established [Isaac] used the basement in the home, including
         doing laundry there. Items consistent with the manufacture of
         methamphetamine were discovered in the basement. The liquid
         from the one-pot cook method taken from the home
         subsequently tested positive for methamphetamine. Viewing
         the evidence in a light most favorable to the prosecution, we
         find a rational trier of fact could find beyond a reasonable doubt
         Appellant knew about and participated in the manufacture of
         methamphetamine and possessed chemicals necessary for the
         manufacture of methamphetamine * * *.” Id. at 58.5

         {¶65} In State v. Seldon, 8th Dist. Cuyahoga No. 98429, 2013-Ohio-

819, wherein the appellate court reversed Seldon’s conviction for assembly

or possession of chemicals used to manufacture methamphetamine, the court

observed at ¶ 24:

         “In cases throughout Ohio where convictions for Assembly or
         Possession of Chemicals used to Manufacture Controlled
         Substance were upheld, the state produced evidence from which
         a jury could conclude beyond a reasonable doubt that the
         requisite intent to manufacture existed. * * * Such evidence
         included the following: * * * the defendant, in addition to
         chemicals, possessed the actual physical equipment needed to
         manufacture methamphetamine, such as beakers, filters, tubing,
         electrical tape, copper fittings, a heat source, etc., State v.
         Throckmorton, 4th Dist. No. 08CA17, 2009-Ohio-5344,
         reversed on other grounds * * *.”

         {¶66} We acknowledge the previously-referenced cases, wherein

similar convictions were affirmed, involved fact patterns in which additional

corroborative evidence was submitted to the juries. Here, Appellant was

5
  In addition, testimony at trial established [Isaac] had a prior history of purchasing a significant quantity of
pseudoephedrine, including a recent attempted purchase with [her codefendant] with whom she was
residing on August 12, 2014. Specifically, [Isaac] purchased an inordinate amount of pseudoephedrine in
the months prior to August 12, 2014.
Pike App. No. 16CA864                                                       39

discovered alone in bedroom two in close proximity to an acid gas generator

on a dresser, a mason jar with flammable liquid on a shelf in the bedroom

two closet, and a one-pot bottle in a backpack on the floor. The acid gas

generator was actively giving off fumes, hydrogen chloride gas.

      {¶67} Corporal Cottrell testified the acid generator was assembled and

was reacted to the point where the hydrogen chloride gas would be

administered to the liquid of the one-pot once the liquid was extracted.

Various other necessary ingredients were found in bedroom two, including

drain opener, ammonium nitrate, starting fluid, salt, coffee filters. A

marijuana pipe, another item of contraband, was found on the bed in

bedroom two. Appellant acknowledged marijuana use.

      {¶68} While we cannot say the evidence against Appellant is

overwhelming, he was found in close proximity to an active one-pot

methamphetamine lab. The acid gas generator, with the hose and fumes, is

the physical equipment, as noted in Throckmorton, needed to manufacture

methamphetamine. And, he was found in the presence of other items, as in

Isaac and Weckner, consistent with the manufacture of methamphetamine.

The marijuana pipe, an entirely separate item of contraband, connects him to

the second bedroom.
Pike App. No. 16CA864                                                        40

      {¶69} “[P]ersons are presumed to have intended the natural,

reasonable and probable consequences of their voluntary acts.” Wickersham,

supra, quoting Garner at 60. Construing the evidence in favor of the

prosecution, we find any rational trier of fact could find Appellant

knowingly possessed the necessary chemicals and intended to manufacture

methamphetamine in the room in which he was located with a one-pot lab

actively giving off fumes. As such, we find the trial court did not err by

overruling Appellant’s Crim.R. 29 motion for acquittal. We hereby overrule

the third assignment of error.

                     ASSIGNMENT OF ERROR FOUR

      {¶70} Appellant argues the three flaws which occurred in his trial,

highlighted above, are serious enough to make his case the rare one which

qualifies for reversal based on cumulative error. Appellee responds that the

trial court did not commit a single error, let alone multiple instances of

harmless error. As such Appellee concludes Appellant’s convictions do not

warrant reversal.

                       A. STANDARD OF REVIEW

      {¶71} Under the doctrine of cumulative error, “a conviction will be

reversed where the cumulative effect of errors in a trial deprives a defendant

of the constitutional right to a fair trial even though each of [the] numerous
Pike App. No. 16CA864                                                          41

instances of trial court error does not individually constitute cause for

reversal.” State v. Smith, 2016-Ohio-5062, 70 N.E.3d 150, (4th Dist.), ¶ 106,

quoting State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995).

“Before we consider whether ‘cumulative errors’ are present, we must first

find that the trial court committed multiple errors.” State v. Harrington, 4th

Dist. No. 05CA3038, 2006-Ohio-4388, ¶ 57, citing Goff, 82 Ohio St.3d at

140, 694 N.E.2d 916.

                           B. LEGAL ANALYSIS

      {¶72} By our resolution of the above assignments of error having

found the trial court did not commit error, the cumulative error doctrine is

inapplicable herein. As such, we summarily overrule Appellant’s final

assignment of error and affirm the judgment of the trial court.

                                                 JUDGMENT AFFIRMED.
Pike App. No. 16CA864                                                        42

                           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 Pike 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.
Hoover, J.: Concurs in Judgment and Opinion as to Assignments of Error I,
            III, & IV; 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.
