[Cite as State v. Kuscsik, 2014-Ohio-2697.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                        :       OPINION

                 Plaintiff-Appellee,                  :
                                                              CASE NO. 2013-A-0058
        - vs -                                        :

TOD KUSCSIK, JR.,                                     :

                 Defendant-Appellant.                 :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2012
CR 488.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Rebecca Hall, P.O. Box 242, 34 South Chestnut Street, Suite 300, Jefferson, OH
44047 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Tod Kuscsik, Jr., appeals his conviction following a jury trial in

the    Ashtabula      County       Court      of   Common   Pleas   of   illegal   manufacture   of

methamphetamine and illegal assembly or possession of chemicals for the manufacture

of methamphetamine. At issue is whether appellant’s conviction was supported by

sufficient credible evidence. For the reasons that follow, we affirm.
       {¶2}     Appellant was indicted for illegal manufacture of methamphetamine

(“meth”), a felony of the second degree, in violation of R.C. 2925.04, and illegal

assembly or possession of chemicals for the manufacture of meth, a felony of the third

degree, in violation of R.C. 2925.041. Appellant pled not guilty and the case was tried

to a jury.

       {¶3}     Deputy Steven Murphy of the Ashtabula County Sheriff’s Department

testified that on July 24, 2012, at about 3:00 a.m., he was on patrol in his cruiser on

Eureka Road in Ashtabula Township assisting Ashtabula County Sheriff’s Deputy Scott

Davis on an unrelated call.

       {¶4}     Deputy Murphy testified that while in the area he saw a vehicle pulling into

the driveway of appellant’s residence on Eureka Road. The driver, later identified as

Dustin Mascik, failed to use his turn signal, and Deputy Murphy stopped him for this

traffic violation. Deputy Murphy learned from L.E.A.D.S. that Mascik’s driver’s license

had been revoked. When the deputy told Mascik that his car would have to be towed,

Mascik said he knew appellant and had made arrangements with him to leave his car in

his driveway.

       {¶5}     Deputy Murphy testified that he and Deputy Davis went to appellant’s front

door to confirm that Mascik had permission to leave his car in his driveway. Appellant’s

home is a small, one-story, ranch-style home. Deputy Davis knocked and in about one

and one-half minute, appellant came to the door and opened it.             Appellant came

outside. He appeared to be wide awake.

       {¶6}     Deputy Murphy explained why they were there, and appellant gave them

permission to leave Mascik’s car in his driveway. Deputy Murphy said that while talking




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to appellant outside, he detected an odor consistent with that of a meth lab coming from

inside appellant’s residence and he mentioned this to appellant.

      {¶7}   Deputy Murphy testified he has experience and training in meth and meth

labs and has investigated about 70 meth labs. He is familiar with the distinctive odor

produced by the manufacture of meth.        The chemicals used in the manufacturing

process create a smell that is similar to, but much stronger than, the smell of ammonia.

      {¶8}   After advising appellant of his Miranda rights, Deputy Murphy asked him if

there was a meth lab in his house. At first appellant said “no.” Deputy Murphy then

asked him if anyone else was in the house. Appellant said that a James Coffman was

inside. Deputy Murphy then asked appellant again if there was a meth lab in the house.

This time appellant said Coffman brought a meth lab with him in the saddlebag on the

motorcycle he had driven there. Deputy Murphy checked the motorcycle, which was in

appellant’s garage, but found nothing connecting it with a meth lab.

      {¶9}   Deputy Murphy testified that appellant said Coffman was in the back

bedroom, which appellant said was his own bedroom, and gave the deputy permission

to enter the house. The front door opens into the living room and a small hallway off the

living room leads to appellant’s bedroom. Deputy Davis stayed with appellant in the

living room while Deputy Murphy went to appellant’s bedroom. Deputy Murphy said that

as he walked through the house, the entire house smelled of meth. He said that as he

approached appellant’s bedroom, the odor of a meth lab was overwhelming.

      {¶10} Deputy Murphy said that when he opened the bedroom door, he saw

Coffman lying on the floor on his stomach in front of the bed. The bed was neat and

looked like it had not been slept in. Deputy Murphy said it did not appear that Coffman




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was living at that house or staying the night in that bedroom. The deputy said that

Coffman appeared to be under the influence of narcotics.           Deputy Murphy asked

Coffman why he was there, and Coffman said he came there to buy drugs. Deputy

Murphy instructed him to show him his hands. Coffman became belligerent and, as a

result, Deputy Davis came in the bedroom to assist Deputy Murphy. As Deputy Murphy

tried to control Coffman, the deputy saw the closet door in appellant’s bedroom was

open and he noticed a one-pot meth lab, i.e., a plastic pop bottle, inside the closet. The

meth lab was active in that its contents were bubbling and rolling. Next to the bottle was

a grinder, which is used in the manufacture of meth to grind pseudoephedrine pills into

a powder.

       {¶11} Deputy Murphy said he also found in the closet a mason jar containing a

liquid with a funnel and coffee filters going into the jar. These items are also used in the

manufacture of meth. Once the various chemicals are cooked, the finished product is

poured into a jar through a funnel and coffee filters. The liquid chemicals go into the jar,

while the wet meth is collected in the filters. Once the meth dries, it takes the form of a

white powdery substance, which can be snorted, injected, swallowed, or smoked.

       {¶12} After Deputy Murphy located the foregoing items in the closet, appellant

pointed out to the deputies a white plastic trash bag in the back enclosed porch, and

said that Coffman had brought in another meth lab in that bag.

       {¶13} Returning to appellant’s bedroom, Deputy Murphy found a large portable

toolbox in front of a dresser. Inside the toolbox were several items that are used in the

production of meth, including HEET, a solvent used to break down pseudoephedrine

into a liquid; plastic tubing; and two bowls with a white powdery substance in them.




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       {¶14} Deputy Murphy said he found meth paraphernalia on the top of the

dresser in appellant’s bedroom. These items included a spoon; a mirror; two snorting

straws; a pipe; a large glass bowl containing a white residue; and a plate with a white

residue, which was later determined to be meth.

       {¶15} Deputy Murphy also found a black vinyl zipper pouch with the name “Tod”

(for appellant, Tod Kuscsik, Jr.) on it in the top drawer of the dresser in appellant’s

bedroom. The pouch contained a digital scale, which is used to weigh the finished meth

for distribution, and several small (two inch by one inch) baggies, which are used to

package and sell the meth.

       {¶16} Deputy Murphy also found a large digital scale on a container in

appellant’s bedroom.

       {¶17} In addition, Deputy Murphy found a package of lithium batteries still

containing some of the batteries in appellant’s bedroom.      Lithium is an essential

ingredient in the manufacturing of meth. The batteries are pulled apart and the lithium

strips inside are removed and mixed with water and other chemicals in the one-pot lab,

which causes a violent reaction in the bottle.

       {¶18} Deputy Murphy also found a clear tube and a green tube with a white

residue on both, which was later determined to be meth, in appellant’s bedroom. Such

tubes are used to siphon off gasses produced in the manufacturing process.

       {¶19} Deputy Murphy testified that he and Deputy Davis then turned their

attention to the white plastic trash bag in the back enclosed porch that appellant had

pointed out to them as having been brought into the house by Coffman and containing a

second one-pot meth lab. Deputy Murphy tore the bag open. Inside the deputies found




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several items used to manufacture meth. These items included a one-pot meth lab; a

drain opener, i.e., sulphuric acid or lye, which is mixed with the pseudoephedrine pills;

and a box containing empty blister packets for the pills.

       {¶20} Deputy Murphy said he also located a one-gallon canister of Coleman

lighter fuel in the breezeway between the house and the garage.          Coleman fuel is

another solvent used in the manufacture of meth, as an alternative to HEET, to break

down the pseudoephedrine pills into a liquid.

       {¶21} Photographs taken of appellant’s house, bedroom, closet, dresser, and

breezeway showing all these items were admitted into evidence.

       {¶22} Deputy Murphy testified that after he and Deputy Davis located the active

meth lab in the closet, he requested a remediation specialist be sent to the scene.

Ashtabula County Sheriff’s Deputy Scott Daniels responded. He took the hazardous

manufacturing materials found in the house outside and neutralized them.

       {¶23} Deputy Murphy arrested appellant and transported him to jail.

       {¶24} The parties stipulated to a lab report prepared by the Ohio Bureau of

Criminal Identification and Investigation, which concluded that: (1) the clear tube and

the green tube found in appellant’s bedroom contained meth and (2) a plate with

residue found on top of the dresser in appellant’s bedroom also contained meth.

       {¶25} Appellant testified on his own behalf.         He was convicted in 2006 for

possession of drugs and trafficking in drugs, for which he was sentenced to six years in

prison.   He was released in January 2012, six months before the instant crimes.

Appellant was also previously convicted in separate cases of burglary, breaking and

entering, felony theft, receiving stolen property, attempted forgery, and misuse of credit




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cards.     He also has multiple prior misdemeanor theft convictions.         He was also

convicted of failure to appear during the proceedings in the instant case.

         {¶26} Appellant testified that during the evening of the instant offenses, on July

23, 2012, at about 6:00 p.m., his friend James Coffman came to his house. Coffman is

married and wanted to use appellant’s bedroom to be with a female named Rachel.

Coffman parked his motorcycle in appellant’s garage because he did not want his wife

to see he was at appellant’s house. Appellant smoked marijuana and had several

drinks with Coffman and Rachel that evening in the living room. Appellant said that at

midnight, Coffman and Rachel went into his bedroom, and he fell asleep on the couch in

the living room. Appellant said that sometime between midnight and 3:00 a.m., Rachel

left his house.

         {¶27} Appellant admitted he uses marijuana and meth, but that he had no idea

there was a meth lab in his bedroom. He said he and Coffman have been friends for 16

years and they do drugs together.

         {¶28} In contrast to Deputy Murphy’s testimony, appellant said that only Deputy

Davis, not Deputy Murphy, came to the door asking if Mascik could leave his car in his

driveway. Appellant said that Deputy Murphy was standing in his driveway with Mascik.

Appellant said that Deputy Davis never said he smelled meth.           Appellant said that

sometime later, Deputy Murphy came to the front door and asked him what was the

chemical odor he smelled. Appellant said there was no chemical odor. Appellant said

that Deputy Murphy then asked him whose motorcycle was in the garage and appellant

said it belonged to Coffman. Appellant said he told Deputy Murphy that Coffman was in

his bedroom.      Deputy Murphy asked to talk to Coffman and appellant allowed the




                                             7
deputy to enter his house. Appellant said that Deputy Murphy never asked him if there

was a meth lab in his house and that he, appellant, never said that Coffman brought a

meth lab into the house. Instead, appellant said that Deputy Murphy said he smelled a

meth lab and that he, appellant, said the only way there could be a meth lab in his

house would be if Coffman brought one with him.

       {¶29} Appellant said he directed the deputies to the white trash bag in the rear of

the house, but he said he never told Deputy Murphy that there was a meth lab in the

bag. He said he only mentioned the bag to the deputies because he saw Coffman

throw it in the back porch.

       {¶30} Appellant said that the black pouch with a zipper containing a scale and

baggies with his name on it and the plate with meth found on top of his dresser

belonged to him, but said that none of the components of a meth lab located by the

deputies in his house was his.

       {¶31} Appellant said he had no idea what Coffman meant when he said he came

to appellant’s house to buy drugs.

       {¶32} On cross-examination, appellant could not explain how Coffman could

have brought all the manufacturing components located by the deputies into his house,

let alone his bedroom, without him knowing about it. Appellant admitted he knows

Mascik, the male Deputy Murphy stopped in his driveway at 3:00 a.m. that night, and

said that Mascik just happened to be “dropping by.”

       {¶33} Appellant did not call as witnesses Coffman, Rachel, or Mascik to

corroborate any aspect of his testimony.




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       {¶34} The jury found appellant guilty of both illegal manufacture of meth and

illegal assembly or possession of chemicals for the manufacture of meth as charged in

the indictment.    The court referred the matter for a presentence report.          At the

sentencing, the court merged the illegal assembly charge into the illegal manufacture

charge. The court found that appellant has seven prior felony convictions. The court

sentenced appellant for the illegal manufacture offense to five years in prison, to be

served concurrently with his 18-month sentence for his failure to appear conviction.

       {¶35} Appellant appeals his conviction, asserting three assignments of error.

Because they are interrelated, they shall be considered together. They allege:

       {¶36} “[1.] There was insufficient evidence presented to sustain a conviction for

the charges of illegal manufacturing of drugs, illegal assembly or possession of

chemicals for the manufacture of drugs in violation of defendant-appellant’s Fifth, Sixth

and Fourteenth Amendment rights.

       {¶37} “[2.] The trial court erred to the prejudice of Mr. Kuscsik when it denied his

motion for acquittal made pursuant to Crim.R. 29(A).

       {¶38} “[3.] The trial court erred to the prejudice of the defendant-appellant when

it returned a verdict of guilty against the manifest weight of the evidence.”

       {¶39} An appellate court reviewing the sufficiency of the evidence examines the

evidence admitted at trial and determines whether, after viewing the evidence in a light

most favorable to the state, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d

259, 273 (1991). “On review for sufficiency, courts are to assess not whether the state’s

evidence is to be believed, but whether, if believed, the evidence against a defendant




                                             9
would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook,

J., concurring).   Whether the evidence is legally sufficient to sustain a verdict is a

question of law which we review de novo. Id. at 386.

       {¶40} An appellate court also applies the foregoing test in reviewing the trial

court’s ruling on a motion for directed verdict under Crim.R. 29 as such motion also

tests the sufficiency of the evidence. State v. Hall, 11th Dist. Trumbull No. 2011-T-

0115, 2012-Ohio-4336, ¶7; State v. Czajka, 101 Ohio App.3d 564, 573 (8th Dist.1995).

       {¶41} In contrast, a court reviewing the manifest weight observes the entire

record, weighs the evidence and all reasonable inferences, and considers the credibility

of the witnesses. Thompkins, supra, at 387. The court determines whether, in resolving

conflicts in the evidence and deciding witness credibility, the trier of fact clearly lost its

way and created such a manifest miscarriage of justice that the judgment must be

reversed and a new trial ordered. Id. The discretionary power to grant a new trial

should only be exercised in the exceptional case in which the evidence weighs heavily

against the conviction. Id. Witness credibility rests solely with the finder of fact, and an

appellate court is not permitted to substitute its judgment for that of the jury. State v.

Awan, 22 Ohio St.3d 120, 123 (1986). “The jury is entitled to believe all, part, or none of

the testimony of any witness.” State v. Archibald, 11th Dist. Lake Nos. 2006-L-047 and

2006-L-207, 2007-Ohio-4966, ¶61. The role of the reviewing court is to engage in a

limited weighing of the evidence in determining whether the state properly carried its

burden of persuasion. Thompkins, supra, at 390. If the evidence is susceptible to more

than one interpretation, an appellate court must interpret it in a manner consistent with




                                             10
the verdict. State v. Banks, 11th Dist. Ashtabula No. 2003-A-0118, 2005-Ohio-5286,

¶33.

       {¶42} The evidence presented by the state against appellant was circumstantial

in nature. Circumstantial evidence is the proof of facts by direct evidence from which a

factfinder may reasonably infer the existence of other facts. State v. Pistillo, 11th Dist.

Lake No. 2003-L-183, 2004-Ohio-6333, ¶20.            Circumstantial evidence and direct

evidence inherently possess the same probative value. Jenks, supra, at 272.               As

circumstantial evidence and direct evidence are indistinguishable in this respect, “all

that is required of the jury is that it weigh all of the evidence, direct and circumstantial,

against the standard of proof beyond a reasonable doubt.” Id.

       {¶43} Appellant was convicted of illegal manufacture of meth in violation of R.C.

2925.04, and illegal assembly or possession of chemicals for the manufacture of meth

in violation of R.C. 2925.041. R.C. 2925.04(A) provides, “[n]o person shall knowingly * *

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

substance.” R.C. 2925.041(A) provides, “[n]o person shall knowingly assemble or

possess one or more chemicals that may be used to manufacture a controlled

substance * * * with the intent to manufacture a controlled substance * * * in violation of

section 2925.04 of the Revised Code.” R.C. 2925.041(B) provides, “[i]n 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 * * *. The

assembly or possession of a single chemical that may be used in the manufacture of a

controlled substance * * *, with the intent to manufacture a controlled substance * * *, is

sufficient to violate this section.”




                                             11
       {¶44} Appellant does not dispute that there was a meth lab in his house.

However, he maintains that Coffman, his close friend for 16 years, ran this lab without

his knowledge or assistance and that the evidence was insufficient to demonstrate that

he engaged in, or was complicit in, these activities.

       {¶45} Ohio’s complicity statute provides, “[a] charge of complicity may be stated

in terms of this section [i.e., Ohio’s complicity statute], or in terms of the principal

offense.” R.C. 2923.03(F).     Further, “[n]o person acting with the kind of culpability

required for the commission of an offense, shall do any of the following: * * * [a]id or

abet another in committing the offense * * *.” R.C. 2923.03(A)(2).

       {¶46} In order to support a conviction based on a defendant’s complicity by

aiding and abetting, “the evidence must show that the defendant supported, assisted,

encouraged, cooperated with, advised, or incited the principal in the commission of the

crime, and that the defendant shared the criminal intent of the principal.” (Emphasis

added.)   State v. Johnson, 93 Ohio St.3d 240, 245 (2001).           Mere presence of an

individual at the scene of the crime is not sufficient to prove that he or she was an

accomplice. Id. at 243-245. However, aiding and abetting can be demonstrated by

direct or circumstantial evidence, and it can be inferred from “presence, companionship

and conduct before and after the offense is committed.” Id. A complicity instruction is

proper if “the evidence adduced at trial could reasonably be found to have proven the

defendant guilty as an aider and abettor[.]” State v. Perryman, 49 Ohio St.2d 14 (1976),

paragraph five of the syllabus. Here, the trial court instructed the jury regarding the law

of complicity with respect to both of the charged offenses. Moreover, appellant did not

object to this instruction below and does not challenge it on appeal.




                                            12
      {¶47} Turning to the instant case, Deputy Murphy testified there was a strong

odor in the house consistent with a meth lab and this odor was overwhelming as the

deputy approached appellant’s bedroom. Despite the late hour, Deputy Murphy said

that when they came to the door, appellant appeared to be wide awake. In addition,

appellant told the deputies that Coffman had brought two meth labs in the house.

Further, appellant was present in the house while Coffman was manufacturing meth in

appellant’s bedroom. Appellant admitted he and Coffman have been friends for many

years, and Coffman told Deputy Murphy he came to appellant’s house that night to buy

drugs. Further, materials used in the production and use of meth were located in

appellant’s bedroom, and a white residue, which was later determined to be meth, was

found on several of these items. Also, chemicals used to manufacture meth were found

elsewhere in the house. In addition, by allowing Coffman to use his bedroom, appellant

provided him with a safe, hidden location to manufacture meth.        Thus, appellant

supported, assisted, and cooperated with Coffman in manufacturing meth and

assembling or possessing chemicals used in manufacturing meth. Based on this, the

state presented sufficient evidence from which the jury could reasonably infer that

appellant had knowledge that meth was being manufactured in his home and that he

was engaged in, or at least complicit in, manufacturing meth and assembling or

possessing chemicals used to manufacture meth.

      {¶48} The facts of the instant case are substantially the same as those

presented in State v. Lanik, 9th Dist. Summit Nos. 26192 and 26224, 2013-Ohio-361,

motion for appeal denied by the Ohio Supreme Court at 136 Ohio St.3d 1472, 2013-

Ohio-3790. There, upon arrival at the defendant’s home, the officer told the defendant




                                         13
that he detected an odor of meth in her home, but she said she could not smell it. At

that time the officer found the defendant’s boyfriend in her basement actively

manufacturing meth. Further, the meth lab was apparent from the basement steps.

Materials used in the production and use of meth were located throughout the

basement.    Drug paraphernalia and a white residue were found in the defendant’s

bedroom. Fuel was found in the kitchen. In the defendant’s bedroom, officers found a

smoking device, white powder on top of glass, a meth pipe and plastic bags, plates with

a residue on them, and a digital scale. The defendant did not dispute that there was a

meth lab in her house, but she argued her boyfriend ran this lab in her basement

without her knowledge or assistance and that the evidence was insufficient to

demonstrate she engaged in, or was complicit in, these activities. However, on these

facts, the Ninth District held there was sufficient evidence from which the jury could

reasonably infer that the defendant had knowledge meth was being manufactured in her

home and that the defendant was engaged in or, at a minimum, was complicit in

manufacturing meth and assembling or possessing chemicals for the manufacture of

meth. Id. at ¶30.

      {¶49} In support of appellant’s manifest weight challenge, he does not point to

any conflicts in the evidence, which is the usual basis for such challenge. State v.

Triplett, 11th Dist. Ashtabula No. 2013-A-1018, 2013-Ohio-5190, ¶48.        Instead, he

argues the state presented no evidence of appellant’s complicity, which is a sufficiency

challenge.

      {¶50} In any event, the principal issue in this case was whether appellant had

knowledge of what Coffman was doing in his bedroom.          While appellant does not




                                          14
address it, there was a conflict in the testimony on this issue. Deputy Murphy testified

that there was a strong odor of meth throughout the entire house and that appellant told

him Coffman had brought two meth labs into the house. In contrast, appellant testified

that there was no odor of meth in the house and that he never told the deputies that

Coffman brought a meth lab with him. The jury, as the trier of fact, was entitled to

believe Deputy Murphy and to discount appellant’s testimony, which it obviously did. In

doing so we cannot say the jury clearly lost its way and created such a manifest

miscarriage of justice that appellant was entitled to a new trial.

       {¶51} We therefore hold the state presented sufficient, credible evidence to

support appellant’s conviction.

       {¶52} For the reasons stated in this opinion, the assignments of error are

overruled. It is the judgment and order of this court that the judgment of the Ashtabula

County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, P.J.,

DIANE V. GRENDELL, J.,

concur.




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