[Cite as J.D. v. State, 2019-Ohio-4446.]


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

J.D., et al.                                         C.A. No.     29234

        Appellants

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
STATE OF OHIO                                        COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellee                                     CASE No.   CV-2015-04-2351

                                  DECISION AND JOURNAL ENTRY

Dated: October 30, 2019



        CALLAHAN, Judge.

        {¶1}     Appellants, J.D. and M.M., appeal a judgment of the Summit County Court of

Common Pleas that determined that they were not wrongly imprisoned individuals. This Court

affirms.

                                                I.

        {¶2}     In the early hours of October 28, 2012, members of the Akron Police Department

arrested several individuals at a residence that was suspected to be the location of a

methamphetamine lab. J.D. and M.M. were among those arrested. They were charged with

illegal manufacture of drugs in violation of R.C. 2925.04(A) and illegal assembly or possession

of chemicals for the manufacture of drugs in violation of R.C. 2925.041(A). A jury found J.D.

and M.M. guilty of both charges. J.D. was sentenced to three years in prison; M.M., who had a

prior drug-related conviction, was sentenced to five years in prison. J.D. and M.M. appealed,
                                                 2


and in 2014, this Court reversed their convictions, concluding that in each of their cases, the

convictions were not supported by sufficient evidence.

       {¶3}     In 2015, J.D. and M.M. filed a petition that requested declarations that they were

wrongfully imprisoned individuals under R.C. 2743.48.            The State moved for summary

judgment, but the trial court concluded that there were genuine issues of material fact regarding

whether J.D. and M.M. had established that they were actually innocent of the charges brought

against them, as required by R.C. 2743.48(A)(5), and denied the motion. Following a bench

trial, the trial court entered judgment in favor of the State, concluding that J.D. and M.M. were

not wrongfully imprisoned individuals because they did not carry their burden of proving that

they were actually innocent of the charges. J.D. and M.M. filed this appeal.

                                                 II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT’S DECISION IS AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE[.]

       {¶4}    In their only assignment of error, J.D. and M.M. argue that the trial court’s

conclusion that they did not prove their actual innocence is against the manifest weight of the

evidence. This Court disagrees.

       {¶5}    When the weight of the evidence is challenged in a civil case, this Court “‘weighs

the evidence and all reasonable inferences, considers the credibility of witnesses and determines

whether in resolving conflicts in the evidence, the [finder 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.’” (Alterations in original.) Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179,

¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th Dist.2001). See also Palmer v.
                                                3


State, 9th Dist. Medina No. 2878-M, 1999 WL 820758, *2 (Oct. 13, 1999) (applying this

standard to an actual innocence determination under R.C. 2743.48(A)).

       {¶6}   “All wrongful-imprisonment claimants must follow a two-step process.” Griffith

v. Cleveland, 128 Ohio St.3d 35, 2010-Ohio-4905, paragraph two of the syllabus. In the first

step, the claimant must obtain a preliminary factual determination from a court of common pleas

that he or she is a wrongfully imprisoned individual as defined by R.C. 2743.48(A). See id.

Claimants who have obtained this determination may then pursue an action for damages in the

Court of Claims as provided by R.C. 2743.48(D). See id.

       {¶7}   R.C. 2743.48(A) requires an individual seeking compensation for wrongful

imprisonment to demonstrate that:

       (1) The individual was charged with a violation of a section of the Revised Code
       by an indictment or information, and the violation charged was an aggravated
       felony or felony.

       (2) The individual was found guilty of, but did not plead guilty to, the particular
       charge or a lesser-included offense by the court or jury involved, and the offense
       of which the individual was found guilty was an aggravated felony or felony.

       (3) The individual was sentenced to an indefinite or definite term of imprisonment
       in a state correctional institution for the offense of which the individual was found
       guilty.

       (4) The individual’s conviction was vacated, dismissed, or reversed on appeal, the
       prosecuting attorney in the case cannot or will not seek any further appeal of right
       or upon leave of court, and no criminal proceeding is pending, can be brought, or
       will be brought by any prosecuting attorney, city director of law, village solicitor,
       or other chief legal officer of a municipal corporation against the individual for
       any act associated with that conviction[,] [and]

       (5) Subsequent to sentencing and during or subsequent to imprisonment, an error
       in procedure resulted in the individual’s release, or it was determined by the court
       of common pleas in the county where the underlying criminal action was initiated
       that the charged offense, including all lesser-included offenses, either was not
       committed by the individual or was not committed by any person.
                                                 4


R.C. 2743.48(A) places the burden on the claimant to prove by a preponderance of the evidence

that he or she satisfies each of the requirements set forth therein. Doss v. State, 135 Ohio St.3d

211, 2012-Ohio-5678, paragraph one of the syllabus. In this case, the parties stipulated that J.D.

and M.M. satisfied the requirements of R.C. 2743.48(A)(1)-(3), and the case went to trial on the

issue of whether they satisfied R.C. 2743.48(A)(4) and (5). The trial court, in turn, decided this

matter based on its determination that J.D. and M.M. had not proved that they satisfied R.C.

2743.48(A)(5), so our analysis is confined to that section as well. Specifically, our consideration

is whether J.D. and M.M. established “that the charged offense, including all lesser-included

offenses, either was not committed by [them] or was not committed by any person.” R.C.

2743.48(A)(5).

       {¶8}      This element of R.C. 2743.48 requires a claimant to prove that he or she is

actually innocent of the charges at issue. See Doss at ¶ 12; Palmer, 1999 WL 820758, at *2.

“[A] verdict or judgment of acquittal in a criminal trial is a determination that the state has not

met its burden of proof on the essential elements of the crime. It is not necessarily a finding that

the accused is innocent.” Walden v. State, 47 Ohio St.3d 47, 51 (1989). Consequently, a

judgment of acquittal subsequent to conviction is not the same as a determination of actual

innocence under R.C. 2743.48(A)(5). See id. at paragraph two of the syllabus. “When a court

vacates or reverses a criminal conviction based on insufficiency of the evidence, the court is

saying that the state has not proven the elements of the offense beyond a reasonable doubt; it is

not saying that innocence has been proven. Thus, reversal on insufficiency of the evidence does

not automatically mean that the defendant was wrongfully imprisoned.” Doss at ¶ 15, citing

Chandler v. State, 95 Ohio App.3d 142, 149 (8th Dist.1994).
                                                5


       {¶9}     J.D. and M.M. were charged with illegal manufacture of drugs in violation of

R.C. 2925.04(A), which provides that “[n]o person shall knowingly * * * manufacture or

otherwise engage in any part of the production of a controlled substance.” They were also

charged with illegal assembly or possession of chemicals for the manufacture of drugs in

violation of R.C. 2925.041(A), which provides that “[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 or II in

violation of section 2925.04 of the Revised Code.”

       {¶10} C.P., an acquaintance of J.D. and M.M. who was staying at the house next door to

the scene of the incident in October 2012, testified on their behalf. She testified that during the

evening of October 27, 2012, she and her then-boyfriend contacted J.D. to obtain a ride to her

boyfriend’s home. Although she initially testified that she and her boyfriend contacted J.D., she

ultimately clarified that her boyfriend sent text messages to J.D. and that she did not see either

his messages or J.D.’s responses. C.P. testified that she believed her boyfriend sent two text

messages several hours apart and that after a couple of hours, he said J.D. would be there shortly

to pick them up. Instead of waiting for J.D., however, C.P. and her boyfriend fell asleep in an

upstairs bedroom. According to C.P., they never saw J.D. and M.M. at the house where she was

staying, but she testified that she believed that the only reason J.D. was in the area was to give

her and her boyfriend a ride. C.P. hypothesized that J.D. and M.M. must have gone to the house

next door because they could not contact her, but she acknowledged that she never

communicated directly with J.D. and M.M. on the night in question. She testified that when she

saw J.D. and M.M., they were in police cruisers parked in front of the house next door.
                                                 6


       {¶11} D.C. lived next door to C.P. in the house where the events in question took place.

He testified that J.D. and M.M. were at his house to pick up his cousin, who was also C.P.’s

boyfriend, but according to his version of events, it was he who contacted J.D. to give the couple

a ride. He acknowledged that when the police came to his house, he was in the living room with

J.D., M.M., and two other individuals. C.P. denied that J.D. and M.M. provided him with any of

the materials necessary to manufacture methamphetamine and, specifically, that they provided

any components to him in exchange for cash or drugs. He acknowledged that he had been

known to manufacture methamphetamine, but said that he did so outdoors, at “a little spot where

I go where nobody can be affected.” When shown a picture of a garbage bag that was purported

to contain byproducts of manufacturing methamphetamine, D.C. denied that he knew what the

substance was, and he hypothesized that if garbage bags containing methamphetamine trash were

found in the house, it was because the police planted them there. D.C. admitted that he had

manufactured methamphetamine during the week leading up to October 28, 2012, but denied that

he had done so on that day or within the three days prior.

       {¶12} J.D. testified that she arrived with M.M. at the scene of the events in question

because C.P.’s boyfriend sent her text messages asking for a ride. She claimed that he asked her

to pick him up next door rather than at the house where C.P. had been staying, but that he was

not present when they arrived. J.D. testified that she did not go to the house for any other reason

and, specifically, that she did not go there to provide any of the components needed to

manufacture methamphetamine or to trade those components for methamphetamine.                   She

testified that she had never removed methamphetamine trash from the house and that she did not

do so on the evening of October 28th. J.D. denied that she brought any drug paraphernalia with

her: specifically, she denied that either an Altoids case containing drug paraphernalia or a vial of
                                                 7


methamphetamine was hers and she denied that she owned a digital scale found in the living

room. She also denied that she had used methamphetamine while there.

        {¶13} M.M.’s testimony was similar. He stated that he and J.D. were present in order to

give C.P. and her boyfriend a ride home. He denied that he provided any product for the

manufacture of methamphetamine and that he removed any trash containing byproducts from the

manufacture of methamphetamine from D.C.’s house. M.M. acknowledged his prior conviction

for manufacturing methamphetamine and that he was on probation at the time of the events in

question, and he admitted that during a recorded telephone call from jail, he stated that he “knew

[he] probably shouldn’t have gone over there.” He testified that he was familiar with the

distinctive odor of methamphetamine production, but denied that the odor was present that night.

M.M. denied that there had been four lines of methamphetamine on the coffee table when he was

sitting in the living room. He testified that he did not see pliers, a pipe cutter, electrical tape,

alcohol, chemical gloves, baggies with residue, a digital scale, a pink pouch containing straws, or

an Altoids container holding razors, aluminum foil, and a vial of methamphetamine in the living

room.

        {¶14} The State’s two witnesses painted a different picture of the events on October 28,

2012.   Officer David Crockett, a member of the Akron Police Department’s clandestine

laboratory enforcement team, testified that he had received multiple complaints about

methamphetamine manufacture at D.C.’s residence. He explained that at approximately 10:30

p.m. on October 27, 2012, he was asked to provide assistance to two officers conducting a traffic

stop near the same neighborhood because the subjects of the stop were carrying

methamphetamine and had receipts showing the recent purchase of items used in

methamphetamine production. Those individuals proved to be D.C.’s next door neighbors and,
                                                8


during a search of their residence, Officer Crockett found Coleman stove fuel, muriatic acid, and

acid generators, which he identified as items used in methamphetamine production. He also

learned that the occupants of D.C.’s house may be cooking methamphetamine that night. Officer

Crockett also explained that C.P. and her boyfriend were present at the house that was searched.

        {¶15} Officer Crocket testified that he had other reasons to suspect that

methamphetamine was being manufactured at D.C.’s house that evening: He had previously

found “meth dumpsite[s]” within a block or two of the residence containing “the trash or waste

that’s left over from manufacturing meth such as bottles, acid gas generators, the trash from the

packaging and from the materials.” He also noted that the windows in the house were open and

that fans were operating, and he could see two men outside. Officer Crockett testified that when

he approached, one man threw a gun away, and he determined that the scene presented “a very

volatile situation.”

        {¶16} Officer Crockett recalled that when he entered the house, he immediately noted

the distinct chemical odor associated with methamphetamine production, which indicated to him

that it was presently occurring or had occurred very recently. J.D. and M.M. were in the living

room, which—as depicted by pictures introduced during the hearing—was strewn with items

related to methamphetamine manufacture. He noted drug residue on the living room table and

stereo speakers. Officer Crockett testified that he heard running water in the house, and the

immediacy of the probable manufacture of methamphetamine led him to be concerned that the

scene posed a risk of explosion or fire. In addition to the items in the living room, Officer

Crockett found products related to manufacturing methamphetamine throughout the house. He

explained that he located D.C. in the basement of the home, where he also found

pseudoephedrine and several other chemicals and products used in manufacturing
                                                 9


methamphetamine. Officer Crocket also discovered a trash bag containing sludge byproduct that

was “still very wet * * * [not] dried out at all” and appeared to have been disposed of “very

recently, within a few days[.]” With respect to the sludge generated during methamphetamine

manufacture, Officer Crockett explained that it contains many dangerous elements and,

consequently, cooks usually dispose of it quickly. He noted that it is “very rare” for cooks to

leave sludge lying around for days.

       {¶17} Officer Crocket also testified that it is rare for individuals to manufacture

methamphetamine alone. Instead, he explained, cooks prefer not to draw attention to themselves

by procuring all of the materials on their own, so other individuals often purchase materials such

as batteries, ammonium nitrate, and Sudafed and trade them to the cook in exchange for money

or drugs—a practice known as “smurfing.”

       {¶18} The State’s other witness, a woman named A.H., testified that she was living at

D.C.’s house at the time and had been convicted of a criminal charge arising from the events of

October 28th. She explained that during the investigation of the underlying incident, she agreed

to provide a truthful account of the events to Officer Crockett. As part of her proffer, she

informed Officer Crockett that she was “completely involved” in the incident, both providing

chemicals for manufacturing methamphetamine and using herself.

       {¶19} A.H. explained that J.D., M.M., and several other individuals were present at

D.C.’s house in order “[t]o get high.” She testified that C.P.’s boyfriend had requested a ride that

evening, but not until after J.D. and M.M. had arrived. She explained that D.C. laid four lines of

methamphetamine out on a stereo speaker, but that M.M. blew them away when the police came.

A.H. testified that she was certain that J.D. brought the pink pouch containing straws and other
                                                  10


paraphernalia, noting that “[s]he had it on her all the time.” She also testified that the Altoids

container and the digital scale found in the living room belonged to J.D.

        {¶20} A.H. testified that she was certain that she had seen J.D. and M.M. bring supplies

for D.C. to cook methamphetamine within a week before October 28th.                  Specifically, she

explained that they provided “[c]old packs, lye, Coleman [fuel], [and] Sudafed.” A.H. also

testified that J.D. and M.M. had removed waste from cooking after she placed it in garbage bags.

A.H. estimated that D.C. had last cooked methamphetamine one or two nights before October

28th.   She acknowledged that she had previously cooperated with the investigation of the

underlying incident and that some of her current testimony was more detailed than her proffer.

A.H. also stated, however, that she was not willingly testifying in these proceedings.

        {¶21} J.D. and M.M. maintain that the trial court’s judgment that they did not prove that

they were actually innocent of the crimes with which they were charged is against the manifest

weight of the evidence because A.H.’s testimony should be viewed with suspicion and, in their

estimation, there is no evidence supporting the State’s theory of the case. The burden of proof in

this case, however, did not fall to the State. J.D. and M.M. bore the burden of proving that they

were actually innocent of the charges by a preponderance of the evidence. See Doss, 135 Ohio

St.3d 211, 2012-Ohio-5678, at ¶ 12.

        {¶22} This Court must “‘consider[] the credibility of witnesses’” as part of our manifest

weight review. State v. Thompkins, 78 Ohio St.3d 380, 387, quoting State v. Martin, 20 Ohio

App.3d 172, 175 (1st Dist.1983). Nonetheless, this Court is mindful of the well-established

principle that a trier of fact enjoys the best position to assess the credibility of witnesses. State v.

Rivera, 9th Dist. Lorain No. 18CA011263, 2019-Ohio-62, ¶ 39, quoting State v. Johnson, 9th

Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15. In this case, the trial court not only found the
                                                11


testimony of A.H. to be credible, but the testimony of Officer Crockett as well. In that respect,

this Court notes that Officer Crockett’s testimony is supported by the photographic evidence

introduced at trial, which stands in stark contradiction to D.C.’s testimony. Given all of the

evidence in this case, we cannot conclude that this is the exceptional case in which the evidence

weighs heavily against the trial court’s judgment.

       {¶23} J.D. and M.M.’s assignment of error is overruled.

                                                III.

       {¶24} J.D. and M.M.’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       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.
                                         12


      Costs taxed to Appellants.




                                              LYNNE S. CALLAHAN
                                              FOR THE COURT



TEODOSIO, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

ALAN M. MEDVICK, Attorney at Law, for Appellants.

DAVE YOST, Attorney General, and THOMAS MADDEN, Assistant Attorney General, for
Appellee.
