[Cite as State v. Wyatt, 2014-Ohio-3009.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            PREBLE COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2013-06-005

                                                  :            OPINION
    - vs -                                                      7/7/2014
                                                  :

CHARLES RANDALL WYATT,                            :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                           Case No. 12-CR-11093



Martin P. Votel, Preble County Prosecuting Attorney, Eric E. Marit, Preble County
Courthouse, 101 East Main Street, 1st Floor, Eaton, Ohio 45320, for plaintiff-appellee

Brian A. Muenchenbach, 130 West Second Street, Suite 2103, Dayton, Ohio 45402-1505, for
defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Charles Wyatt, appeals his convictions in the Preble

County Court of Common Pleas for illegal manufacture of drugs, aggravated possession of

drugs, endangering children, and having drug paraphernalia.

        {¶ 2} One of Wyatt's neighbors contacted police to report that strong chemical smells

were coming from the direction of the property owned by Wyatt's father. Deputy Paul
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Plaugher of the Preble County Sheriff's Office interviewed the neighbor, and learned that

such odors had been coming from the Wyatt property for several months. The neighbor also

explained that cars would come and go from the property at all times of the day and night,

and stay only long enough for Wyatt to go out to the car and visit for a brief moment. Wyatt

also littered the neighbor's property with empty water bottles, empty mineral spirits

containers, and a propane tank with a retrofitted ball valve system that contained anhydrous

ammonia. The neighbor also stated that Wyatt had installed an exhaust fan in the barn, and

that when it was turned on, the chemical smell coming from the Wyatt property was much

stronger.

        {¶ 3} Deputy Plaugher and his partner went to the neighbor's property, and from

there could smell a strong odor of what Deputy Plaugher believed to be ether coming from

the direction of the Wyatt property. Specifically, the smell was emanating from the barn area
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of the property where Wyatt lived in a trailer. From his position on the neighbor's property,

Deputy Plaugher was able to hear the noise of an exhaust fan coming from the barn area.

While Deputy Plaugher was on the property, he received a dispatch that required him to

leave the neighbor's property for a short period. During that period, the neighbor called

Deputy Plaugher to inform him that men on the Wyatt property had started a fire near the

barn. Deputy Plaugher later returned to the neighbor's property to continue his observations

of the Wyatt property, including the fire near the barn.

        {¶ 4} Deputy Plaugher drafted an affidavit with the information he obtained from

going to the neighbor's property, as well as his personal experience of smelling ether

emanating from the Wyatt property, hearing an exhaust fan, and seeing the fire. Deputy

Plaugher also averred what he had learned from the neighbor regarding cars coming and


1. The facts indicate that Wyatt's parents lived in a house on the property while Wyatt, his girlfriend, and her
three children lived in a trailer located on the property immediately in front of the barn area.

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going from the Wyatt property at all hours. Deputy Plaugher also averred that Wyatt was

known to have a prior conviction for aggravated possession of drugs. From these facts,

Deputy Plaugher averred his belief that a methamphetamine "cook" was occurring on the

Wyatt property.

       {¶ 5} Deputy Plaugher was granted the search warrant, and such was executed with

the help of other officers from the Preble County Sheriff's Office. During the search, officers

located several individuals on the property, including Tanessa Miller (Wyatt's girlfriend),

Miller's three children, and John Dougherty. Wyatt was not found on the property at the time

the warrant was executed.          Upon execution of the warrant, officers found the

methamphetamine "lab" in the barn, just as Deputy Plaugher suspected.

       {¶ 6} The barn contained evidence that methamphetamine had been produced in the

24-48 hours before the warrant was executed. The barn also contained large quantities of

finished methamphetamine, and Wyatt's fingerprint was found on a bowl in which the finished

product was stored.        Officers also seized other evidence of methamphetamine

manufacturing, including lithium batteries, retrofitted propane tanks, and other chemicals

necessary to the manufacturing process.

       {¶ 7} Wyatt was indicted for illegal manufacture of drugs, illegal assembly or

possession of chemicals for the illegal manufacture of drugs within the vicinity of a minor,

aggravated possession of drugs, endangering children, and having drug paraphernalia. A

warrant was issued for Wyatt's arrest.

       {¶ 8} A few days after the arrest warrant was issued, Deputy Plaugher spoke to

Wyatt on a phone after Wyatt's father made contact with his son in Deputy Plugher's

presence. During the phone conversation, Wyatt claimed that he had been in Indianapolis

before, during, and after the time that the warrant was executed, and that he had nothing to

do with the manufacture of methamphetamine.
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      {¶ 9} Approximately three months later, Wyatt was arrested, arraigned, and

appointed counsel. Three days after his arraignment, and while incarcerated at the Preble

County Jail, Wyatt asked to speak to Deputy Plaugher. Deputy Plaugher read Wyatt his

Miranda rights before speaking with him, and Wyatt executed a waiver of those rights. Wyatt

then spoke to Deputy Plaugher outside the company of his appointed counsel. During their

conversation, Wyatt admitted that John Doughtery had "cooked" methamphetamine for him,

and that he was on his father's property the night before the search warrant was executed

and not in Indiana as he had previously told Deputy Plaugher.

      {¶ 10} Wyatt later moved for suppression of his statements, as well as the evidence

seized from the barn and the Wyatt property during the execution of the search warrant. On

the day of the suppression hearing, the state informed Wyatt that if he chose to move

forward with his motion, any plea offers would be revoked. Wyatt moved forward with the

motion to suppress hearing anyway, and the state in fact revoked a plea offer it had

previously made. After the hearing, the trial court denied Wyatt's motion to suppress, and

the matter proceeded to a two-day jury trial.

      {¶ 11} The jury found Wyatt guilty of each count. The trial court merged some of the

counts, and ordered an aggregate prison sentence of six years. Wyatt now appeals his

convictions and sentence, raising the following assignments of error:

      {¶ 12} Assignment of Error No. 1:

      {¶ 13} THE TRIAL COURT ERRED WHEN IT DENIED MR. WYATT'S MOTION TO

SUPPRESS EVIDENCE OBTAINED AS A RESULT OF AN UNLAWFUL SEARCH AND

FAILED TO SUPRESS [SIC] STATEMENTS MADE IN VIOLATION OF APPELLANT'S

FIFTH AMENDMENT RIGHTS.

      {¶ 14} Wyatt argues in his first assignment of error that his motion to suppress should

have been granted.
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       {¶ 15} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353.

Acting as the trier of fact, the trial court is in the best position to resolve factual questions and

evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to

suppress, a reviewing court is bound to accept the trial court's findings of fact if they are

supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No. CA2005-03-

074, 2005-Ohio-6038. "An appellate court, however, independently reviews the trial court's

legal conclusions based on those facts and determines, without deference to the trial court's

decision, whether as a matter of law, the facts satisfy the appropriate legal standard."

Cochran at ¶ 12.

       {¶ 16} Wyatt first moved to suppress evidence seized as a result of the search warrant

obtained by Deputy Plaugher and executed by the Preble County police.

       {¶ 17} According to Crim.R. 41(C),

               (1) A warrant shall issue on either an affidavit or affidavits sworn
               to before a judge of a court of record or an affidavit or affidavits
               communicated to the judge* * *. The affidavit shall name or
               describe the person to be searched or particularly describe the
               place to be searched, name or describe the property to be
               searched for and seized, state substantially the offense in
               relation thereto, and state the factual basis for the affiant's belief
               that such property is there located. * * *

               (2) If the judge is satisfied that probable cause for the search
               exists, the judge shall issue a warrant identifying the property
               and naming or describing the person or place to be searched.

       {¶ 18} When determining the sufficiency of probable cause in an affidavit submitted in

support of a search warrant, "the task of the issuing magistrate is simply to make a practical,

common-sense decision whether, given all the circumstances set forth in the affidavit before

him * * * there is a fair probability that contraband or evidence of a crime will be found in a

particular place." State v. George, 45 Ohio St.3d 325 (1989), paragraph one of the syllabus.


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       {¶ 19} An appellate court should not substitute its judgment for that of the issuing court

as to whether the affidavit contains sufficient probable cause upon which that court would

issue the search warrant. State v. Akers, 12th Dist. Butler No. CA2007-07-163, 2008-Ohio-

4164. "In conducting any after-the-fact scrutiny of an affidavit submitted in support of a

search warrant, trial and appellate courts should accord great deference to the magistrate's

determination of probable cause, and doubtful or marginal cases in this area should be

resolved in favor of upholding the warrant." George, paragraph two of the syllabus.

       {¶ 20} During the motion to suppress hearing, Deputy Plaugher testified that he was

informed of possible drug-related activity on the Wyatt property based upon a call made by

one of Wyatt's neighbors.      Deputy Plaugher testified that when he responded to the

neighbor's home, he was close to the Wyatt property and could smell a "strong chemical

smell, which smelled like ether" emanating from the barn area on the Wyatt property. Deputy

Plaugher also testified that while he and his partner were on the property, they saw men

leaving the barn on Wyatt's property, and that one man directed the other to lock the barn

"tight." Deputy Plaugher also heard an exhaust fan running on the Wyatt property, and

testified that in his experience, the smells coming from the Wyatt property were indicative of

methamphetamine manufacturing.

       {¶ 21} Deputy Plaugher took all of the information he learned from the neighbor, as

well as his own personal observations, and submitted an affidavit explaining the reasons

behind his belief that Wyatt was manufacturing methamphetamine in the barn. Plaugher

specifically described the different places on the property where suspected drug activity was

occurring, including the house, the barn, and Wyatt's trailer near the barn.

       {¶ 22} Wyatt argues that Deputy Plaugher's affidavit was insufficient to establish

probable cause to support the search warrant because no ether was ever discovered during

the search, and therefore, Deputy Plaugher's statement that he smelled ether while near the
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Wyatt property was "only included in the affidavit in an attempt to mislead the Judge into

construing the information to establish probable cause."

       {¶ 23} The record indicates that no ether was cataloged on the inventory of seized

evidence as prepared by police after the search. That does not mean, however, that ether

was never on the property or that Deputy Plaugher did not smell ether, or something similar,

the night he investigated from the neighbor's property. The state suggests several reasons

that ether was not inventoried after the seizure of evidence. As previously stated, the barn

contained a large quantity of finished product, so that it is possible that the ether was used in

whatever manufacturing occurred while Deputy Plaugher was investigating. The record also

contains evidence that a hazardous materials team was on the scene after the warrant was

executed and destroyed chemicals that were not taken into evidence. Or, it is possible that

the men who started the fire on the property did so to dispose of the discarded containers for

ingredients used during the manufacturing process. We agree with the state that there are

several possibilities regarding what could have happened to the ether, if such did exist on the

property. However, such a determination is not necessary, as there is no indication that

Deputy Plaugher fabricated his observation of smelling chemicals coming from the Wyatt

property to mislead the judge.

       {¶ 24} The fact that no ether was found does not diminish the fact that other chemicals

were found on the property that could account for the strong chemical smell, or that the

neighbor who first called the police to report the suspicious activity complained of strong

chemical smells coming from the Wyatt property without making any specific reference to

ether. Moreover, the affidavit contained information other than specific mention of ether,

such as cars coming and going from the property and other suspicious drug-related activity.

       {¶ 25} After reviewing the record, we find that Deputy Plaugher's affidavit named the

place to be searched, described the evidence to be searched for and seized, and stated
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substantially the factual basis for his belief that evidence of methamphetamine manufacturing

was located there. Given all the circumstances set forth in Deputy Plaugher's affidavit, there

was a fair probability that contraband or evidence of a crime would be found on the Wyatt

property. We also have reviewed the search warrant and find that the judge issued a proper

warrant that identified the property, described the place to be searched, and described the

evidence to be seized. As such, the search warrant and execution thereof was valid and the

trial court properly overruled Wyatt's challenge to the warrant and evidence seized therefrom.

       {¶ 26} Wyatt next argues that the trial court should have suppressed the statements

he made to Deputy Plaugher once he had been arraigned on the charges and appointed

counsel.

       {¶ 27} "The Sixth Amendment right to counsel is triggered 'at or after the time that

judicial proceedings have been initiated * * * whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.'" Fellers v. United States, 540 U.S. 519,

523, 124 S.Ct. 1019 (2004), quoting Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232

(1977). The United States Supreme Court has held that "an accused is denied 'the basic

protections' of the Sixth Amendment 'when there [is] used against him at his trial evidence of

his own incriminating words, which * * * agents * * * deliberately elicited from him after he had

been indicted and in the absence of his counsel.'" Fellers at 523, quoting Massiah v. United

States, 377 U.S. 201, 206, 84 S.Ct. 1199 (1964). However, "the Sixth Amendment right to

counsel may be waived by a defendant, so long as relinquishment of the right is voluntary,

knowing, and intelligent." Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 2085

(2009). A defendant may waive his Sixth Amendment right whether or not he is already

represented by counsel, and the decision to waive "need not itself be counseled." Id. When

a defendant is read his Miranda rights, which expressly include the right to have counsel

present during interrogation, and agrees to waive those rights, a valid waiver occurs. Id.
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       {¶ 28} "Nothing in the Sixth Amendment prevents a suspect charged with a crime and

represented by counsel from voluntarily choosing, on his own, to speak with police in the

absence of an attorney." Michigan v. Harvey, 494 U.S. 344, 352, 110 S.Ct. 1176 (1990).

"Although a defendant may sometimes later regret his decision to speak with police, the Sixth

Amendment does not disable a criminal defendant from exercising his free will." Id. at 353.

       {¶ 29} The record is clear that Wyatt was arraigned and appointed counsel so that his

Sixth Amendment rights were triggered. However, the record is equally clear that Wyatt

expressly initiated contact with Deputy Plaugher and asked to speak to him outside the

presence of his attorney. The record contains an "inmate request form" written by Wyatt

while he was incarcerated at the Preble County Jail. Within the request form, Wyatt stated, "I

need to speak with Officer [sic] Plaugher or the head of the Meth task force team. Thank

You." This written request was issued solely at Wyatt's request, and based upon his free will

and desire to speak to Deputy Plaugher.

       {¶ 30} The record contains evidence that when Deputy Plaugher spoke to Wyatt at the

jail, he advised Wyatt of his Miranda rights and Wyatt expressly waived such by signing a

Miranda waiver form. Within the form, the Miranda rights are expressly stated, and Wyatt

affirmed that he understood the rights, was able to read, and that he understood what he

read about the rights. The next section of the waiver states, "understanding what you have

read and what has been read to you about your rights, will you now make a statement and

answer questions, without your lawyer being present, concerning" the manufacturing of

methamphetamine at the Wyatt property? (Emphasis added.) Wyatt answered "yes" to the

question, and proceeded to give his statement to Deputy Plaugher.

       {¶ 31} Unlike an instance where a suspect is afforded his Sixth Amendment rights and

such rights are then violated when police initiate interrogation outside the presence of the

suspect's attorney, Deputy Plaugher never initiated contact with Wyatt once Wyatt was
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appointed counsel. Wyatt himself initiated contact with Deputy Plaugher, and further waived

his right to remain silent by signing a waiver of his rights after such were fully explained to

him.

       {¶ 32} Notably, the waiver form Wyatt signed made specific reference to the

discussion occurring without Wyatt's lawyer being present, and Wyatt agreed to talk to

Deputy Plaugher without his counsel present. As such, Wyatt waived his rights, and no

violation of the Fifth or Sixth Amendments occurred. See State v. Geldrich, 12th Dist. Butler

No. CA2006-10-267, 2008-Ohio-2622 (affirming denial of motion to suppress where appellant

made statement to officers of his own accord and officers did not deliberately elicit

appellant's statement after his Sixth Amendment rights were triggered).

       {¶ 33} Wyatt places great emphasis on the fact that at the time Deputy Plaugher

advised him of his rights, Deputy Plaugher was unaware that Wyatt had been appointed

counsel. However, such a fact is irrelevant because Deputy Plaugher did not initiate the

contact and did not take any action to interrogate Wyatt once Wyatt was arraigned. It was

within Wyatt's free will, and own decision-making process, to request an audience with

Deputy Plaugher. Despite what Deputy Plaugher knew or did not know, Wyatt himself knew

that he had been appointed counsel and had the right to have counsel present during his

interaction with Deputy Plaugher. Wyatt, however, elected to waive his rights, and Deputy

Plughter not knowing that Wyatt had previously been appointed counsel does not vitiate that

valid waiver.

       {¶ 34} Having found that the search warrant was properly issued and executed, and

that Wyatt's rights were not violated when he gave his statement to Deputy Plaugher, Wyatt's

first assignment of error is overruled.

       {¶ 35} Assignment of Error No. 2:

       {¶ 36} THE TRIALL [SIC] COURT ERRED WHEN IT OVERRULED APPELLANT'S
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CRIM.R. 29 MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE EVIDENCE WAS

INSUFFICIENT TO SUPPORT A CONVICTION AND/OR APPELLANT'S CONVICTION [SIC]

IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

      {¶ 37} Wyatt argues in his second assignment of error that his convictions were

against the manifest weight of the evidence and were not supported by sufficient evidence,

and that his Crim.R. 29 motion should therefore have been granted.

      {¶ 38} This court reviews a trial court's decision on a Crim.R. 29(C) motion for acquittal

using the same standard as that is used to review a sufficiency of the evidence claim. State

v. Grindstaff, 12th Dist. Clermont No. CA2013-09-074, 2014-Ohio-2581. When reviewing the

sufficiency of the evidence underlying a criminal conviction, an appellate court examines the

evidence in order to determine whether such evidence, if believed, would support a

conviction. State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298. "The

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." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus, superseded on other grounds.

      {¶ 39} A manifest weight challenge examines the inclination of the greater amount of

credible evidence offered at trial to support one side of the issue rather than the other.

Wilson, 2007-Ohio-2298.

             In determining whether a conviction is against the manifest
             weight of the evidence, the court, reviewing the entire record,
             weighs the evidence and all reasonable inferences, considers
             the credibility of the witnesses and determines whether in
             resolving conflicts in the evidence, the trier of fact clearly lost its
             way and created such a manifest miscarriage of justice that the
             conviction must be reversed and a new trial ordered.

State v. Cummings, 12th Dist. Butler No. CA2006-09-224, 2007-Ohio-4970, ¶ 12.

      {¶ 40} While appellate review includes the responsibility to consider the credibility of
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witnesses and the weight given to the evidence, "these issues are primarily matters for the

trier of fact to decide since the trier of fact is in the best position to judge the credibility of the

witnesses and the weight to be given the evidence." State v. Walker, 12th Dist. Butler No.

CA2006-04-085, 2007-Ohio-911, ¶ 26.              Therefore, an appellate court will overturn a

conviction due to the manifest weight of the evidence only in extraordinary circumstances to

correct a manifest miscarriage of justice, and only when the evidence presented at trial

weighs heavily in favor of acquittal. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       {¶ 41} Wyatt was convicted of illegal manufacture of drugs in violation of R.C.

2925.04(A), which provides that "no person shall knowingly * * * manufacture or otherwise

engage in any part of the production of a controlled substance." Wyatt was also convicted of

illegal assembly or possession of chemicals for the manufacture of drugs in violation of R.C.

2925.041(A), which provides that "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 * * *." Wyatt was also convicted of

possession of drugs in violation of R.C. 2925.11(A), which provides that, "no person shall

knowingly obtain, possess, or use a controlled substance or a controlled substance analog."

Wyatt was also convicted of endangering children in violation of R.C. 2919.22(B)(6), which

criminalizes permitting children to be on the same property, "and within one hundred feet of"

the manufacturing or illegal assembly of drugs "when the person knows that the act is

occurring * * *." Lastly, Wyatt was convicted of having drug paraphernalia in violation of R.C.

2925.14(C)(1), which provides that "no person shall knowingly use, or possess with purpose

to use, drug paraphernalia."

       {¶ 42} As all of these crimes essentially relate to the state's charge that Wyatt

manufactured methamphetamine, Wyatt argues that the state failed to prove that he was

responsible for the methamphetamine "cook" on the property, and that he did not knowingly
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possess the chemicals used in the illegal assembly of methamphetamine.

       {¶ 43} According to R.C. 2901.22(B), "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."

       {¶ 44} Possession means "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." R.C. 2925.01(K). Possession

may be actual or constructive. State v. Bowling, 12th Dist. Butler No. CA2013-08-159, 2014-

Ohio-1690. "Constructive possession exists when one is conscious of the presence of the

object and able to exercise dominion and control over it, even if it is not within one's

immediate physical possession." Id. at ¶ 35. Dominion and control can be proven by

circumstantial evidence alone. State v. Gaefe, 12th Dist. Clinton No. CA2001-11-043, 2002-

Ohio-4995, ¶ 10.

       {¶ 45} Despite Wyatt's arguments to the contrary, the state presented evidence during

the trial that, when viewed in a light most favorable to the prosecution, proves that he

committed each of the crimes for which he was convicted.

       {¶ 46} The state first called Wyatt's neighbor, who had reported the suspicious

behavior at the Wyatt property to police. The neighbor testified that she had a clear view of

the Wyatt property and was aware of who lived on the property, including that Wyatt lived in

the trailer by the barn. The neighbor testified that Wyatt's girlfriend, Tanessa Miller, and

Miller's three children also lived in the trailer with Wyatt. The neighbor testified that there was

suspicious behavior on the Wyatt property, including cars coming and going at all hours of

the day and night, seven days a week. The cars would drive the length of the property until

they reached the barn, and stay only long enough for Wyatt to go to the car, talk for a minute,
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and then leave. The neighbor testified that the same cars would make this trip time and

again.

         {¶ 47} The neighbor also testified that Wyatt approached her and told her that he had

cut a path on her back property near the barn area. The neighbor stated that when she

surveyed the path, Wyatt had littered the area with empty water bottles, a five gallon bucket,

mineral spirits cans, and a propane tank that was retrofitted with ball valves. When the

neighbor and her husband opened the tank, anhydrous ammonia came out of the tank. The

neighbor testified that she confronted Wyatt with the tank in front of his parents, and that he

denied that it was his. However, Wyatt later asked the neighbor to return the tank to him

because he had "a lot of money invested in that tank."

         {¶ 48} The neighbor testified that she could smell strong odors of chemicals coming

from the property, and that Wyatt had installed an exhaust fan in the barn that made the

smells coming from the barn even stronger. The neighbor testified that she saw Wyatt take

items into the barn mere moments before the exhaust fan would turn on and the chemical

smell would emanate from the barn.

         {¶ 49} The state next called Deputy Plaugher, who testified about being called out to

the neighbor's property to investigate possible drug-related crimes. Deputy Plaugher testified

that when he went to the back of the neighbor's property near the Wyatt property, he too

could smell a strong chemical odor. Deputy Plaugher and his partner stayed in the area of

the neighbor's property where they could see the barn, and Deputy Plaugher testified that two

men exited the barn and one told the other to lock the barn "tight." Although Deputy

Plaugher and his partner tried to follow the two men, they were unable to do so, and were

then dispatched to respond to an unrelated alarm.

         {¶ 50} Deputy Plaugher testified that after he left the neighbor's property to respond to

the alarm, he was again contacted within a short time by the neighbor. Deputy Plaugher
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testified that he and his partner later returned to the neighbor's property to continue the

investigation, and detailed the circumstances surrounding procuring the search warrant and

executing it.

       {¶ 51} Deputy Plaugher testified that when he and the other Preble County police

officers executed the warrant, they apprehended John Doughtery, and also found Tenessa

Miller and her three children coming from the trailer next to the barn. Deputy Plaugher

testified that the trailer is well within 100 feet of the barn; he stated that you cannot open the

door to the barn without hitting the trailer. During the search, police seized pseudoephedrine

pills, methamphetamine, marijuana and drug paraphernalia, as well as a glass bowl that

contained methamphetamine and Wyatt's fingerprint.

       {¶ 52} During Deputy Plaugher's testimony, the state played a tape of the recorded

conversation between Wyatt and Deputy Plaugher after Wyatt asked to speak to the deputy.

Within the conversation, Wyatt admitted that he was in the barn the day before the arrest

warrant was executed, and also that he permitted others to manufacture methamphetamine

in the barn. Wyatt also told Deputy Plaugher that he knew "what was going on over there" in

reference to methamphetamine manufacturing in the barn.

       {¶ 53} The state also called Captain Dean Miller of the Preble County Sherriff's Office.

Captain Miller testified that he had been trained in investigating and processing clandestine

methamphetamine labs.         Captain Miller testified to the process of manufacturing

methamphetamine and the materials required for the process, including lithium batteries,

pseudoephedrine pills, mineral spirits, and anhydrous ammonia.

       {¶ 54} Captain Miller testified that he took part in execution of the search warrant on

the Wyatt property, and that when he first entered the barn, he had to leave immediately

because of the noxious chemical odors. Once Captain Miller put on protective gear, he

entered the barn and located materials necessary for the manufacturing of
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methamphetamine, including pseudoephedrine "sludge," batteries, and chemicals.2

        {¶ 55} The state also presented testimony from Agent Dwight Aspacher, a 14-year

veteran of the Ohio Bureau of Criminal Identification and Investigation. Agent Aspacher

specializes in investigating clandestine drug laboratories, and has investigated over a

thousand such laboratories. Agent Aspacher testified that he investigated the barn on the

Wyatt property and during the investigation, he located and identified materials used in the

manufacturing of methamphetamine. Agent Aspacher also testified that he found pill

"sludge," as well as finished methamphetamine in multiple containers. Agent Aspacher

testified that the barn was filled with various containers and implements, such as coffee

grinders to grind pseudoephedrine pills, used in the manufacturing of methamphetamine, and

that the containers were caked with methamphetamine residue.

        {¶ 56} Agent Aspacher testified that he also found a propane cylinder that contained

anhydrous ammonia, which was specially adapted with valves to make it easier to load the

cylinder with ammonia. When asked his assessment of whether the barn contained a

clandestine methamphetamine lab, Agent Aspacher said "yes," and based his assessment

on the presence of pill sludge, chemical waste, crystallization and methamphetamine residue

in the containers, a cooking tin, chemicals, lithium batteries, mineral spirits, and the

ventilation system.

        {¶ 57} Based on the testimony and evidence, the state proved that Wyatt was

conscious of the presence of the methamphetamine laboratory in the barn, as well as all of

the tools, materials, and ingredients used in the manufacturing process. The testimony of

Wyatt's neighbor demonstrated that Wyatt himself carried items into the barn, met with the


2. Captain Miller testified that those who manufacture methamphetamine crush pseudoephedrine tablets and
then pour chemicals over the crushed material to extract the components necessary for methamphetamine
production. Once the liquid is drained off, the leftover materials are referred to as "sludge" and used a second
time.

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"customers" who came to the property to purchase drugs, and put money and work into

creating the necessary tools to manufacture methamphetamine, such as the retrofitted

propane tank that Wyatt wanted to retrieve from the neighbor.

         {¶ 58} Other evidence established that Wyatt exercised dominion and control over the

methamphetamine and related materials. Wyatt's fingerprint was found on a container in

which finished methamphetamine was found during the search, and he freely admitted to

permitting others to manufacture methamphetamine in the barn. Wyatt himself admitted that

he was in the barn on the day before the warrant was executed, and the evidence

established that methamphetamine had been manufactured in the barn 24-48 hours prior to

the execution of the search warrant.

         {¶ 59} While Wyatt argues that his convictions are against the manifest weight of the

evidence and not supported by sufficient evidence, we disagree. The jury heard all of the

testimony, considered the evidence, and found the state's theory of the case and its

witnesses credible. We will not disturb such a finding on appeal. Nor do we find that the jury

clearly lost its way or created a manifest miscarriage of justice that requires reversal. Having

found that Wyatt's convictions were supported by sufficient evidence and were not rendered

against the manifest weight of the evidence, we overruled Wyatt's second assignment of

error.

         {¶ 60} Assignment of Error No. 3:

         {¶ 61} MR. WYATT WAS DEPRIVED OF HIS DUE PROCESS RIGHTS WHEN

FORCED TO ACCEPT OR REJECT A PLEA OFFER CONTINGENT UPON WHETHER MR.

WYATT MOVED FORWARD WITH A SUPPRESSION HEARING.

         {¶ 62} Wyatt argues in his final assignment of error that he was deprived of his due

process rights when the state revoked its plea offer once he moved forward with the motion

to suppress hearing.
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       {¶ 63} Despite Wyatt's argument to the contrary, a criminal defendant does not have a

constitutional right to a plea bargain. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837

(1977).    Instead, the prosecutor acts within the state's discretion in proposing plea

agreements to defendants. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663 (1978). As

such, "the state is not required to offer a defendant a plea bargain and is permitted to

withdraw a plea offer at any time." State v. Hart, 8th Dist. Cuyahoga No. 84531, 2005-Ohio-

107, ¶ 10, citing Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543 (1984).

       {¶ 64} The record indicates that the state offered Wyatt a plea agreement, which

would have dismissed two of the counts, reduced the degree of one count, and limited

Wyatt's prison sentence to three years. Before the motion to suppress hearing began, the

state clearly indicated that if Wyatt moved forward with his motion to suppress, the plea offer

would be revoked and the matter would proceed to a jury trial. The trial court summarized

the agreement before the hearing began, explained the benefits of such agreement to Wyatt,

and confirmed no less than four times that Wyatt wanted to reject the offer and move

forward.

       {¶ 65} The fact that Wyatt chose to reject the state's offer does not, however, render

his due process rights violated. Wyatt was clearly aware of the consequences of rejecting

the plea and having his case decided by a jury.            Wyatt chose to disregard such

consequences in the hope of being acquitted by the jury, and the state was well within its

authority to withdraw the plea offer. As such, we overrule Wyatt's final assignment of error.

       {¶ 66} Judgment affirmed.


       RINGLAND, P.J., and S. POWELL, J., concur.




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