[Cite as State v. Gierhart, 2014-Ohio-1419.]


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

STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :
                                                                      Case No. 13CA17
        v.                                        :
                                                                      DECISION AND
MICHAEL D. GIERHART II,                           :                   JUDGMENT ENTRY

        Defendant-Appellant.                      :                  RELEASED 03/31/2014


                                               APPEARANCES:

Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.

Laina Fetherolf, Hocking County Prosecuting Attorney, Logan, Ohio, for Appellee.


Hoover, J.


        {¶ 1} Defendant-appellant, Michael D. Gierhart, II, appeals his conviction in the Hocking

County Common Pleas Court for the Illegal Manufacture of Drugs, a second-degree felony in

violation of R.C. 2925.04. Gierhart argues that the trial court improperly instructed the jury with

regard to the legal definition of “manufacture”, which is an essential element of the offense of

Illegal Manufacture of Drugs. Specifically, Gierhart argues that the trial court replaced the word

“process” with “possess” which in turn directed that the jury find him guilty of the offense.

Gierhart also argues that he received ineffective assistance from counsel because his trial counsel

did not object to the jury instruction. Upon review, we find that no plain error occurred as a

result of the trial court’s mistaken substitution of the word “possess” for “process” in the

instruction given to the jury. Moreover, Gierhart was not prejudiced by his trial counsel’s failure

to object to the instruction. Accordingly, we affirm the judgment of the trial court.
Hocking App. No. 13CA17                                                                                          2


        {¶ 2} On January 16, 2013, law enforcement officers from the Hocking County Sherriff’s

Office traveled to Gierhart’s residential trailer in Perry Township, Hocking County, Ohio. The

officers had reason to believe that another individual, wanted for a warrant issued from a

neighboring county, would be present at the residence. After initially stating that the individual

was not present, Gierhart eventually permitted the officers to enter the trailer. While inside the

trailer, the officers observed items in plain view that they believed to be commonly used in the

manufacture of methamphetamines. Based upon these observations, Detective Caleb Moritz1 left

the trailer to obtain a search warrant while other officers maintained the scene. Upon obtaining

the warrant, officers from the Fairfield-Hocking Major Crimes Unit (“FHMCU”) executed a

search of the residence.

        {¶ 3} On March 22, 2013, the Hocking County Grand Jury issued an indictment against

Gierhart. The indictment charged Gierhart with the Illegal Manufacture of Drugs in violation of

R.C. 2925.04(A), a second-degree felony; the Illegal Assembly or Possession of Chemicals for

the Manufacture of Drugs in violation of R.C. 2925.041(A), a third-degree felony; and

Possessing Criminal Tools in violation of R.C. 2923.24(A), a fifth-degree felony. At his

arraignment, Gierhart pled not guilty to all counts and he was appointed counsel. Gierhart also

filed a pre-trial motion to suppress, challenging the officers’ initial entry into the residence (the

entry prior to obtaining the search warrant). After an evidentiary hearing, the trial court denied

the motion to suppress finding that Gierhart gave the officers consent to enter his home.




1
  Detective Moritz is an employee of the Hocking County Sheriff’s Office. At the time of the incident, Detective
Moritz was assigned to the Fairfield-Hocking Major Crimes Unit, which is a joint narcotics task force comprised of
law enforcement officers from various agencies.
Hocking App. No. 13CA17                                                                                             3


         {¶ 4} The case ultimately proceeded to jury trial. At trial, Detective Moritz and Detective

Scott Jones2 testified that empty lithium battery casings were found during the search of the

residence. The detectives explained that in their experience, there would be no reason to cut the

casings on a battery except to extract lithium for the one-pot/shake-n-bake method of

methamphetamine production.

         {¶ 5} Detective Moritz, Detective Jones, and Detective Charles Sims3 all testified that a

blender containing visible powder residue was present in the kitchen of the trailer. Detective

Moritz explained that based on his experience he believed that the powder residue had been

derived from crushing pseudoephedrine pills, which is a common process in the production of

methamphetamine. Empty blister packs of pseudoephedrine pills were also found in the trailer.

         {¶ 6} All three detectives also testified that several “HCL acid gas generators” were

located at the residence. An HCL acid gas generator is a device created by combining a common

plastic bottle, such as a soda or water bottle, with plastic tubing. Detective Sims explained that

the devices are used to “salt out” solid methamphetamine from liquid methamphetamine.

Detective Jones testified that he has never seen a HCL acid gas generator be used for anything

other than the production of methamphetamine.

         {¶ 7} Tubing from a HCL acid gas generator was found inside the residence. Detective

Sims testified that a sample of the tubing was submitted to the Ohio Bureau of Criminal

Identification and Investigation (“BCI”) for laboratory testing. Stanton Wheasler, a forensic

scientist from the BCI laboratory, testified that the tubing sample tested positive for

methamphetamine. Two other HCL acid gas generators were found in the bed of Gierhart’s


2 Detective Jones is an employee of the Fairfield County Sheriff’s Office. At the time of the incident, Detective
Jones was assigned to the FHMCU.
3
  Detective Sims is an employee of the Lancaster Police Department. At the time of the incident, Detective Sims
was assigned to the FHMCU.
Hocking App. No. 13CA17                                                                                  4


truck. Samples from these devices were not sent to the BCI for testing because of their exposure

to the outside elements. A photograph of the devices, however, was admitted at trial.

         {¶ 8} A common hair dryer was also found on the kitchen counter of the residence during

execution of the search warrant. Detective Sims testified that in his experience, hair dryers are

often used to complete the drying process from liquid to solid methamphetamine. Detective Sims

and Detective Moritz also testified that small plastic baggies were found in Gierhart’s bedroom,

and noted that in their experience, such items are commonly used to package illegal drugs.

         {¶ 9} Finally, there was a great deal of testimony regarding a mason jar and a Coleman

fuel container found at the residence. Detective Sims and Detective Moritz testified that the

mason jar had been filled with a liquid that they believed to be Coleman fuel containing

methamphetamines. Detective Sims and Detective Moritz explained that Coleman fuel is

commonly used in the salting out process of the one-pot/shake-n-bake method of

methamphetamine production. Samples from the mason jar were submitted to the BCI laboratory

for testing. Stanton Wheasler testified that the samples tested positive for methamphetamines.

         {¶ 10} Gierhart also testified in his own defense. Gierhart stated that he retrieved the

aforementioned items from the residence of a friend, just the night prior to the search of his

residence, in order to help prepare the friend’s home for the return of her son. Gierhart testified

that he simply wished to sort through the property and salvage items that could be of use or

value.

         {¶ 11} At the conclusion of the trial, the jury returned guilty verdicts on all three counts.

The trial court entered a judgment of conviction upon the jury’s verdict and sentenced Gierhart
Hocking App. No. 13CA17                                                                                             5


to a cumulative prison sentence of three years.4 The trial court also imposed a five-year driver’s

license suspension.

        {¶ 12} By way of this appeal, Gierhart only challenges the conviction for Illegal

Manufacture of Drugs5 and asserts the following assignment of error:

Assignment of Error:

        AN ERRONEOUS JURY INSTRUCTION DIRECTING THE JURY TO FIND
        GIERHART GUILTY OF ILLEGAL MANUFACTURE OF DRUGS FOR
        MERELY POSSESSING METHAMPHETAMINES DEPRIVED GIERHART
        OF DUE PROCESS, WHETHER BY PLAIN ERROR ANALYSIS OR BY
        INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO OBJECT.
        {¶ 13} In his sole assignment of error, Gierhart makes two distinct arguments. First,

Gierhart contends that the trial court plainly erred by giving a jury instruction on the charge of

Illegal Manufacture of Drugs that was “inaccurate and inconsistent with [the] law.” Specifically,

Gierhart argues that in instructing the jury on the element of manufacture, an essential element of

the offense of Illegal Manufacture of Drugs, the trial court mistakenly replaced the word

“process” with the word “possess”. Because there was clear testimony that Gierhart possessed

methamphetamines, Gierhart argues that “[t]he jury simply followed the [t]rial [c]ourt’s

erroneous instruction and entered a verdict of guilty upon evidence of possession.” Second,

Gierhart contends that his trial counsel rendered ineffective assistance of counsel when he did

not object to the jury instruction.

        {¶ 14} The trial court delivered the following jury instruction with regard to the Illegal

Manufacture of Drugs offense:


4
  Specifically, Gierhart was sentenced to a three-year prison sanction for the Illegal Manufacture of Drugs
conviction; a two-year prison sanction for the Illegal Assembly or Possession of Chemicals for the Manufacture of
Drugs conviction; and a six-month prison sanction for the Possessing Criminal Tools conviction. The trial court
further ordered that the sentences be served concurrently.
5 R.C. 2925.04(A) provides in part that “[n]o person shall * * * knowingly manufacture or otherwise engage in any
part of the production of a controlled substance.” “Whoever commits a violation of division (A) of [R.C. 2925.04]
that involves any drug other than marihuana is guilty of illegal manufacture of drugs[.]” R.C. 2925.04(C)(1).
Hocking App. No. 13CA17                                                                                6


       With respect to Count I, the defendant is charged with the Illegal Manufacturing

       of Drugs. Now before you can find the defendant guilty, you must find beyond a

       reasonable doubt that on or about January 16, 2013, in Hocking County, Ohio, the

       defendant knowingly manufactured or otherwise engaged in any part of the

       production of methamphetamine knowingly. * * * Now, manufacturing means to

       plant, cultivate, harvest, possess, make, prepare or otherwise engage in any part of

       chemical synthesis or compounding or any combination of the same and includes

       packaging, repackaging, labeling, and other activities incident to production.

[Trial Tr. at 228-230.]

       {¶ 15} The trial record reveals that Gierhart did not object to the court’s jury instruction

concerning the definition of “manufacture” despite being given the opportunity to do so on at

least two occasions. [See Trial Tr. at 235, 238.] Thus, we can recognize the error only if it

constitutes plain error. “To constitute plain error, a reviewing court must find (1) an error in the

proceedings, (2) the error must be a plain, obvious or clear defect in the trial proceedings, and (3)

the error must have affected ‘substantial rights’ (i.e., the trial court’s error must have affected the

trial’s outcome).” State v. Dickess, 174 Ohio App.3d 658, 2008-Ohio-39, 884 N.E.2d 92, ¶ 31

(4th Dist.), citing State v. Hill, 92 Ohio St.3d 191, 749 N.E.2d 274 (2001), and State v Barnes, 94

Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. “Furthermore, notice of plain error must be

taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest

miscarriage of justice.” Id., citing State v. Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710

(1990), and State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the

syllabus. “A reviewing court should notice plain error only if the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id.
Hocking App. No. 13CA17                                                                                7


        {¶ 16} “When we review a trial court’s jury instructions, we may not judge ‘a single

instruction to a jury * * * in artificial isolation,’ but we must view it ‘in the context of the overall

charge.’ ” State v. Stephenson, 4th Dist. Adams No. 12CA936, 2013-Ohio-771, ¶ 20, quoting

State v. Madrigal, 87 Ohio St.3d 378, 396, 721 N.E.2d 52 (2000). “Thus, we must consider the

jury instructions ‘as a whole’ and then determine whether the jury charge probably misled the

jury in a manner materially affecting the complaining party’s substantial rights.” Id. As

explained further by the Ohio Supreme Court:

        In determining the question of prejudicial error in instructions to the jury, the

        charge must be taken as a whole, and the portion that is claimed to be erroneous

        or incomplete must be considered in its relation to, and as it affects and is affected

        by the other parts of the charge. If from the entire charge it appears that a correct

        statement of the law was given in such a manner that the jury could not have been

        misled, no prejudicial error results.

State v. Hardy, 28 Ohio St.2d 89, 92, 276 N.E.2d 247 (1971).

        {¶ 17} “A defective jury instruction does not rise to the level of plain error unless the

defendant shows that the outcome of the trial clearly would have been different but for the

alleged erroneous instruction.” Dickess at ¶ 32, citing State v. Campbell, 69 Ohio St.3d 38, 41,

630 N.E.2d 339 (1994), and Cleveland v. Buckley, 67 Ohio App.3d 799, 805, 588 N.E.2d 912

(8th Dist.1990).

        {¶ 18} Under R.C. 2925.01(J), “ ‘[m]anufacture’ 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.”
Hocking App. No. 13CA17                                                                                 8


       {¶ 19} In this case, the trial court’s instruction did contain a minor error in its definition

of manufacture. However, the error was not so severe as to mislead the jury or to constitute plain

error. Gierhart concedes that with the exception of the trial court’s use of the word “possess”

instead of “process”, “the instruction is consistent with the statutory definition of [m]anufacture

in R.C. 2925.01(J).” [Merit Brief at 10.] “ ‘Ordinarily, reversible error does not consist of

misstatements or ambiguities in only part of the instructions.’ ” State v. Delawder, 4th Dist.

Scioto No. 10CA3344, 2012-Ohio-1923, ¶ 30, quoting State v. Pettit, 4th Dist. Vinton No.

99CA529, 2000 WL 897993, *3 (July 5, 2000). Moreover, a review of the complete jury

instruction delivered by the trial court with regard to the offense of Illegal Manufacture of Drugs,

clearly demonstrates that the trial court provided the jury with adequate instructions to allow the

jury to correctly determine Gierhart’s guilt. The instruction correctly noted that guilt could be

established by evidence that the defendant made, prepared, or otherwise engaged in the chemical

synthesis of methamphetamine. And here, there was an abundance of circumstantial evidence

that could lead the jury to reasonably conclude that Gierhart made, prepared, or otherwise

engaged in the chemical synthesis of methamphetamines – most notably the presence of

components and chemicals needed to produce methamphetamine, the alteration of various items

that are commonly used in the one-pot/shake-n-bake method of production, and the presence of

the liquid containing the methamphetamine. Thus, when viewing the jury instruction as a whole,

we find that the trial court properly instructed the jury with regard to the offense of Illegal

Manufacture of Drugs. There is also no danger, given the abundance of evidence in this case,

that but for the erroneous instruction, the outcome of the trial clearly would have been different.

Accordingly, Gierhart’s argument that the trial court committed plain error when instructing the

jury regarding the offense of Illegal Manufacture of Drugs is not well taken.
Hocking App. No. 13CA17                                                                                              9


         {¶ 20} Gierhart also contends that he was denied effective assistance of counsel.

Specifically, Gierhart argues that he was denied the effective assistance of counsel because his

trial counsel failed to object to the jury instruction.

         {¶ 21} To establish constitutionally ineffective assistance of counsel, a defendant must

show (1) that his counsel’s performance was deficient, and (2) that the deficient performance

prejudiced the defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904

(2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In order to show

deficient performance, the defendant must prove that counsel’s performance fell below an

objective level of reasonable representation. To show prejudice, the defendant must show a

reasonable probability that, but for counsel’s errors, the result of the proceeding would have been

different.” (Citations omitted.) State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848

N.E.2d 810, ¶ 95. “Failure to establish either element is fatal to the claim.” State v. Jones, 4th

Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14. Therefore, if one element is dispositive, a

court need not analyze both. See Madrigal, 87 Ohio St.3d at 389, 721 N.E.2d 52 (stating that a

defendant’s failure to satisfy one of the elements “negates a court’s need to consider the other.”).

In Ohio, there is a presumption that a properly licensed attorney is competent. State v. Calhoun,

86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999).

         {¶ 22} As noted above, we find that the jury instruction did not affect the outcome of the

proceedings in this case.6 Thus, even if counsel had objected, we cannot conclude with

reasonable probability that a “correct” instruction would have resulted in a finding of innocence


6
 While we acknowledge that the “clearly would have been different” language used in plain error analysis
establishes a slightly stiffer burden than the “reasonable probability” language used in evaluating ineffective
assistance claims, we nonetheless conclude that in the instant case, the evidence of guilt is so overwhelming that
under either analysis we cannot find reversible error. See generally, Pettit, supra.
Hocking App. No. 13CA17                                                                        10


on behalf of Gierhart. There is simply an abundance of circumstantial evidence in this case that

would permit a reasonable jury to conclude that Gierhart did manufacture methamphetamine.

Accordingly, Gierhart cannot demonstrate that he was prejudiced by his counsel’s failure to

object to the jury instruction, and his ineffective assistance claim is not well taken.

       {¶ 23} For the foregoing reasons, we overrule Gierhart’s sole assignment of error and

affirm the judgment of the trial court.

                                                                         JUDGMENT AFFIRMED.
Hocking App. No. 13CA17                                                                          11


                                      JUDGMENT ENTRY


         It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein
taxed.
         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Hocking County
Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in that court. If a stay is continued
by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the
failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-
five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration
of sixty days, the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Abele, P.J. & Harsha, J.: Concur in Judgment & Opinion.


                                                             For the Court

                                                             By:
                                                                   Marie Hoover, Judge


                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
