[Cite as State v. Mack, 2014-Ohio-1387.]


STATE OF OHIO                    )                 IN THE COURT OF APPEALS
                                 )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                      C.A. No.      26859

        Appellee

        v.                                         APPEAL FROM JUDGMENT
                                                   ENTERED IN THE
DANIEL R. MACK                                     COURT OF COMMON PLEAS
                                                   COUNTY OF SUMMIT, OHIO
        Appellant                                  CASE No.   CR 12 10 2837 (B)

                                 DECISION AND JOURNAL ENTRY

Dated: March 31, 2014



        MOORE, Presiding Judge.

        {¶1}    Appellant, Daniel Mack, appeals his convictions in the Summit County Court of

Common Pleas. This Court affirms in part and reverses in part.

                                              I.

        {¶2}    For two months, Mr. Mack lived in a Kenmore Boulevard townhouse with his

girlfriend, Kaitlyn Carpas. Mr. Mack decided to move out after a fight with Ms. Carpas, and

their landlord saw Mr. Mack load some of his possessions into a white car and drive away on the

afternoon of October 1, 2012. Within a few hours, Akron police approached the residence after a

tip that methamphetamine was being produced and used at the location. Ms. Carpas consented to

a search and, while inside, police detected an odor distinct to the manufacture of

methamphetamine and found numerous items related to its production in close proximity to one

another. Ms. Carpas was arrested, and she implicated Mr. Mack. A warrant then issued for Mr.

Mack’s arrest as well.
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       {¶3}    Ms. Carpas and Mr. Mack were charged with illegal manufacture of drugs in

violation of R.C. 2925.04(A), a second-degree felony; illegal assembly or possession of

chemicals for the manufacture of drugs in violation of R.C. 2925.041(A), a third-degree felony;

and aggravated possession of drugs in violation of R.C. 2925.11(A)/(C)(1), a fifth-degree felony.

Ms. Carpas pleaded guilty to illegal assembly or possession of chemicals and aggravated

possession. The charge of illegal manufacture was dismissed, and the trial court sentenced Ms.

Carpas to two years of community control. She agreed to testify against Mr. Mack, whose case

proceeded to a jury trial.     During the trial, Ms. Carpas testified that although she used

methamphetamine, Mr. Mack was solely responsible for the manufacturing that took place in

their apartment. The trial court did not instruct the jury regarding accomplice testimony, and the

jury found Mr. Mack guilty of all charges. The trial court sentenced him to four years in prison,

and Mr. Mack appealed.

                                                 II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS INSTRUCTION
       TO THE JURY IN FAILING TO GIVE THE JURY THE REQUIRED
       CAUTIONARY INSTRUCTION REGARDING THE TESTIMONY OF AN
       ALLEGED ACCOMPLICE UNDER R.C. 2923.03(D).

       {¶4}    Mr. Mack’s first assignment of error is that the trial court erred by failing to

instruct the jury regarding the accomplice testimony of Kaitlyn Carpas. Because Mr. Mack did

not object to the jury instructions at trial, he has forfeited all but plain error, and consequently,

we may only recognize error that affects a substantial right as necessary to prevent a manifest

miscarriage of justice. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶15-16.

       {¶5}     When an alleged accomplice testifies against a defendant in a jury trial, the trial

court must instruct the jury substantially as follows:
                                                 3


       The testimony of an accomplice does not become inadmissible because of his
       complicity, moral turpitude, or self-interest, but the admitted or claimed
       complicity of a witness may affect his credibility and make his testimony subject
       to grave suspicion, and require that it be weighed with great caution.

       It is for you, as jurors, in the light of all the facts presented to you from the
       witness stand, to evaluate such testimony and to determine its quality and worth
       or its lack of quality and worth.

R.C. 2923.03(D). “When considering whether failure to instruct a jury under R.C. 2923.03(D)

amounts to plain error, this Court considers the scope of cross-examination of the accomplice;

whether the accomplice’s plea agreement was presented to the jury; whether the trial court

substantially complied with R.C. 2923.03(D); and whether trial counsel may have made a tactical

decision not to object in light of favorable testimony by the accomplice.” State v. Smith, 9th

Dist. Summit No. 25650, 2012-Ohio-794, ¶ 21, citing State v. Simpson, 9th Dist. Summit No.

25363, 2011-Ohio-2771, ¶ 19 and State v. Davis, 9th Dist. Summit No. 22395, 2005-Ohio-4083,

¶ 16. The ultimate question is whether in the absence of the alleged error, the defendant would

have obtained a different result at trial. State v. Ross, 9th Dist. Lorain No. 09CA009742, 2012-

Ohio-536, ¶ 46, 48.

       {¶6}    The existence of “error * * * [is] the starting point for a plain-error inquiry,” State

v. Hill, 92 Ohio St.3d 191, 200 (2001), and so our analysis begins with the requirements of R.C.

2923.03(D). “At minimum, an accomplice must be someone who has been indicted for the crime

of complicity.” Smith at ¶ 22, citing State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 131-

132. In this case, Ms. Carpas qualifies as an accomplice because she not only was charged with

the crime of complicity to commit the charged offenses, but as a codefendant in the commission

of the offenses themselves. As such, R.C. 2923.03(D) required the trial court to instruct the jury

in a manner substantially consistent with the instruction provided therein. The parties agree that
                                                  4


the trial court did not instruct the jury regarding Ms. Carpas’ testimony. By the plain terms of

R.C. 2923.03(D), the trial court erred in this omission.

       {¶7}    With respect to plain error, therefore, we turn to the factors set forth in Smith and,

ultimately, to the question of whether the trial court’s error determined the outcome of Mr.

Mack’s trial. In this case, counsel for Mr. Mack vigorously cross-examined Ms. Carpas in

relation to her decision to testify against Mr. Mack and her credibility in general. Ms. Carpas

testified that her agreement to testify was, at least in part, consideration for the recommendation

of a community control sentence instead of a prison term. On the other hand, with respect to

whether the failure to object to the omitted jury instruction may have been a tactical maneuver on

the part of defense counsel, Ms. Carpas’s testimony was entirely unfavorable to Mr. Mack: she

squarely placed the blame for the manufacture of methamphetamine in the residence upon him,

disavowed any interest in the components found in the house, and denied that she herself had any

involvement in the manufacturing process. See State v. Davis, 9th Dist. Summit No. 22395,

2005-Ohio-4083, ¶ 20. The trial court’s jury instructions “left [the jury] to consider [Ms.

Carpas’s] credibility in the identical manner it judged the testimony of all other witnesses” and

did “not comply in any meaningful way with the instructions the legislature has chosen to

mandate for accomplice testimony.” Id. at ¶ 19.

       {¶8}    Finally, we consider the evidence at trial to determine whether the trial court’s

error determined the outcome of Mr. Mack’s trial. See id. We first consider Mr. Mack’s

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

aggravated possession of drugs.       Under R.C. 2925.041(A), “[n]o 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
                                                 5


or II in violation of section 2925.04 of the Revised Code.” Under R.C. 2925.11(A), “[n]o person

shall knowingly obtain, possess, or use a controlled substance[.]” These statutes share the

common element of possession, which requires “control over a thing or substance, but may not

be inferred solely from mere access to the thing or substance through ownership or occupation of

the premises upon which the thing or substance is found.” R.C. 2925.01(K).

       {¶9}    Nonetheless, a defendant who enjoys dominion and control over drug

paraphernalia in a residence may be found to have constructive possession. State v. Woods, 9th

Dist. Wayne No. 07CA0067, 2008-Ohio-1468, ¶ 7. “While mere presence in the vicinity of the

item is insufficient to justify possession, ready availability of the item and close proximity to it

support a finding of constructive possession.” (Internal citations omitted.) State v. Lamb, 9th

Dist. Summit No. 23418, 2007-Ohio-5107, ¶ 12. Some facts standing alone, such as access to

drugs, are insufficient to establish constructive possession on their own, but when viewed

together, these factors may constitute circumstantial evidence that demonstrates constructive

possession. Woods at ¶ 7, citing State v. Owens, 9th Dist. Summit No. 23267, 2007-Ohio-49, ¶

23.

       {¶10} In this case, the owner of the Kenmore Boulevard property testified that Mr.

Mack and Ms. Carpas assumed possession of their apartment from the previous tenants, with

whom they had been staying for an extended period of time. According to the landlord, Mr.

Mack and Ms. Carpas were the only residents of the apartment for about two months before Mr.

Mack moved out. The landlord had regular interaction with Mr. Mack on the premises up to and

including the day that he moved out. Within a matter of just a few hours after Mr. Mack left the

apartment, police found pervasive evidence of methamphetamine use and production in the

residence. According to Lieutenant Brian Simcox, who searched the apartment, the telltale odor
                                                6


of methamphetamine production was present in the bedroom and basement of the home.

Lieutenant Simcox also found numerous items consistent with a “shake and bake” method of

methamphetamine production, including loose pseudoephedrine tablets, coffee filters that tested

positive for methamphetamine, a razor blade and a “snort straw,” muriatic acid, cold packs, and

coffee filters soaked with solvent.     Lieutenant Simcox opined that the evidence he found

indicated recent methamphetamine production and, in the case of the solvent-soaked coffee

filters, “very recent” activity.

        {¶11} Even without Ms. Carpas’s testimony, the testimony of Mr. Mack’s landlord and

Lieutenant Simcox established that methamphetamine and the components necessary for its

manufacture were pervasive within the residence that he shared with Ms. Carpas and that he was

present in that residence only two hours before the evidence was seized.         In light of this

evidence, we cannot say that Mr. Mack would not have been convicted of illegal assembly or

possession of chemicals for the manufacture of drugs and aggravated possession of drugs in the

absence of the trial court’s error.

        {¶12} Mr. Mack’s conviction for illegal manufacture of methamphetamine, however,

presents a different situation.       R.C. 2925.04(A) prohibits any person from knowingly

manufacturing or otherwise engaging in any part of the production of controlled substances.

“‘Manufacture’ means to plant, cultivate, harvest, process, make, prepare, or otherwise engage in

any part of the production of a drug, by propagation, extraction, chemical synthesis, or

compounding, or any combination of the same, and includes packaging, repackaging, labeling,

and other activities incident to production.” R.C. 2925.01(J). When there is evidence indicating

that drugs are being cultivated or produced by someone, the mere presence of a defendant on

property also accessible to others, without more, does not establish a violation of R.C.
                                                7


2925.04(A). See State v. Jones, 6th Dist. Lucas Nos. L-00-1231, L-00-1232, L-00-1233, 2003-

Ohio-219, ¶ 103. Compare State v. Inskeep, 2nd Dist. Champaign No. 2003 CA 22, 2004-Ohio-

4927, ¶ 13-19 (concluding that there was sufficient evidence of cultivating marijuana when the

defendant had lived alone for many years on property under his exclusive control and his actions

in response to the presence of police officers demonstrated his knowledge and participation in

cultivation).

        {¶13} Lieutenant Simcox testified that he observed significant evidence demonstrating

the presence of methamphetamine production at the Kenmore Boulevard townhouse. Mr. Mack

shared the apartment with Ms. Carpas for two months, but Mr. Mack’s landlord testified that he

received complaints from other tenants regarding significant traffic in and out of the rental unit.

Ms. Carpas is an acknowledged drug user who, despite her protestations to the contrary,

displayed detailed knowledge of the methamphetamine production process during her testimony.

Yet her testimony alone points to Mr. Mack as the person responsible for the methamphetamine

production. Police did not recover any physical evidence that would demonstrate a connection,

nor did any other witnesses testify in that regard. The State introduced letters written to Ms.

Carpas by Mr. Mack and has argued that they contain statements that implicate him independent

from her testimony.       Those letters, however, are ambiguous.          Without Ms. Carpas’s

accompanying testimony, they are subject to many possible interpretations other than an

admission of Mr. Mack’s guilt.

        {¶14} Without Ms. Carpas’s testimony, there is no evidence that points to Mr. Mack as a

person responsible for manufacturing the methamphetamine.           With respect to Mr. Mack’s

conviction for illegal manufacture of methamphetamine, therefore, the trial court committed

plain error by failing to instruct the jury as required by R.C. 2923.03(D). Mr. Mack’s first
                                                 8


assignment of error is sustained in part. With respect to his convictions for illegal assembly or

possession of chemicals for the manufacture of drugs and aggravated possession of drugs,

however, his first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       [MR.] MACK WAS RENDERED INEFFECTIVE ASSISTANCE BY DEFENSE
       COUNSEL AT TRIAL.

       {¶15} Mr. Mack’s second assignment of error is that he was denied effective assistance

of counsel by his attorney’s failure to request a complicity instruction. Because this Court has

sustained Mr. Mack’s first assignment of error with respect to his conviction for illegal

manufacture of methamphetamine, his second assignment of error is moot in connection with

that conviction. See State v. Jamhour, 10th Dist. Franklin No. 06AP-20, 2006-Ohio-4987, ¶ 14.

We consider Mr. Mack’s second assignment of error, therefore, in connection with his remaining

convictions.

       {¶16} In order to demonstrate ineffective assistance of counsel, a defendant most show

(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by

counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington,

466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for

counsel’s errors, there is a reasonable possibility that the outcome of the trial would have been

different. Id. at 694. “An error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” Id. at 691. “Speculation regarding the prejudicial effects of counsel’s performance

will not establish ineffective assistance of counsel.” State v. Cromartie, 9th Dist. Medina No.
                                                 9


06CA0107-M, 2008-Ohio-273, ¶ 25, citing State v. Downing, 9th Dist. Summit No. 22012,

2004-Ohio-5952, ¶ 27.

       {¶17} As discussed in our analysis of Mr. Mack’s first assignment of error, the evidence

supported his convictions for illegal assembly or possession of chemicals for the manufacture of

drugs and aggravated possession of drugs even if Ms. Carpas’s testimony is disregarded entirely.

Consequently, his argument that he would have obtained a different result at trial on these

charges had a complicity instruction been given is speculative, at best. Mr. Mack has not

demonstrated a reasonable probability that he would have been acquitted of these charges in the

absence of counsel’s error, and his second assignment of error is overruled in part.

                                                III.

       {¶18} Mr. Mack’s first assignment of error is sustained with respect to his conviction for

illegal manufacture of methamphetamine, but overruled with respect to his other convictions.

His second assignment of error is moot with respect to his conviction for illegal manufacture of

methamphetamine, but is overruled with respect to his other convictions. The judgment of the

Summit County Court of Common Pleas is affirmed in part and reversed in part, and this case is

remanded for a new trial on the charge of illegal manufacture of methamphetamine.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.
                                                10


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     CARLA MOORE
                                                     FOR THE COURT



BELFANCE, J.
HENSAL, J.
CONCUR.


APPEARANCES:

JEFFREY N. JAMES, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
