      [Cite as State v. Markin, 2014-Ohio-3630.]


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

STATE OF OHIO,                                     :
                                                   :
      Plaintiff-Appellee,                          :   Case No. 13CA22
                                                   :
      vs.                                          :
                                                   :   DECISION AND JUDGMENT
WILLIAM E. MARKIN,                                 :   ENTRY
                                                   :
      Defendant-Appellant.                         :   Released: 08/14/14

                                        APPEARANCES:

Jeremiah J. Spires, Lancaster, Ohio, for Appellant.

Judy C. Wolford, Pickaway County Prosecutor, and Jayme Hartley Fountain,
Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee.


McFarland, J.

      {¶1} William E. Markin, (Appellant), appeals his conviction in the Pickaway

County Court of Common Pleas on two counts: (Count One), possession of drugs,

R.C. 2925.11(A)/(C)(1)(b), a felony of the third degree; and (Count Two), illegal

manufacture of drugs or cultivation of marihuana, R.C. 2925,04(A)/(C)(3)(a), a

felony of the second degree. Appellant contends the verdicts are not supported by

sufficient evidence because the prosecution failed to prove essential elements as to

each count. Appellant also contends the verdicts are against the manifest weight of

the evidence. Having reviewed the entire record, we find any rational trier of fact
Pickaway App. No. 13CA22                                                                         2


could have found the essential elements of the crime proven beyond a reasonable

doubt. And, having reviewed the record, weighed the evidence and all reasonable

inferences, and considered the credibility of the witnesses, we further find the

greater amount of credible evidence supports the verdicts. As such, we overrule

Appellant’s assignments of error and affirm the judgment of the trial court.

                                                        FACTS

           {¶2} William E. Markin was indicted by the Pickaway County Grand Jury

on two counts: (Count One), possession of drugs, R.C. 2925.11(A)/(C)(1)(b); and,

(Count Two), illegal manufacture of drugs or cultivation of marihuana, R.C.

2925.04(A)/(C) (3)(a). The charges arose from events which transpired on

February 1, 2013 during a “reverse buy,” raid, and search, (conducted by officers

of the Circleville Police Department and the U.S. 23 Pipeline Task Force), of a

trailer located on Villa Drive in Circleville, Ohio.

           {¶3} Appellant was arraigned on March 27, 2013, and entered pleas of not

guilty. He was allowed to sign a recognizance bond, and a previously posted bond

of $25,000.00 was continued. Appellant was assigned appointed counsel.

           {¶4} Appellant eventually proceeded to a jury trial on July 25, 2013. The

State presented testimony from Detective Tom Royster, James Edward Mitchell, a

confidential informant, co-defendants John Edler and Christy Lowery,1 and


1
    At trial, Ms. Lowery indicated she preferred to be identified as “Christy Adkins.”
                                                                                 JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                               3


Detective Jason Park. The State also introduced numerous photographic exhibits.

Appellant testified on his own behalf. He also presented testimony from his sister,

Amy Lynn Yarger, and his mother Connie Sue DePugh.

      {¶5} Detective Royster testified he is employed by the Circleville Police

Department and the U.S. 23 Pipeline Task Force. He prepared a search warrant for

the trailer where Appellant was arrested, based on information obtained from the

confidential informant, James Mitchell. Mitchell had approached Royster, asking

to participate with the task force. Detective Royster, via authorization from the

Pickaway County Prosecutor’s Office, provided Sudafed knowing it would be used

for the manufacture of methamphetamine. Mitchell was paid $200.00 for his

participation. Royster testified Appellant, James Edler, Christy Lowery, and

Matthew Griffin were present at the trailer the day the search warrant was

executed. Mitchell had advised that Appellant would be there.

      {¶6} Royster testified through the execution of the search warrant, the

officers recovered various pieces of evidence, including a vented hood; finished

product methamphetamine on a plate; pipes used to smoke methamphetamine;

Coleman fuel; several mason jars; discarded Mountain Dew bottles; a salt

container; liquid drain opener; digital scales; charred lithium batteries; packaging

baggies; marihuana in an ash tray and smoking pipes; and one of the boxes of

Sudafed. Royster described the layout of the trailer. When Royster first entered,

                                                          JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                           4


Appellant and Edler were in the back bedroom, both sitting on the bed. Christy

and Griffin were in the bathroom.

      {¶7} Royster testified specimens were obtained from the mason jars and sent

to the Ohio B.C.I. laboratory in Columbus, Ohio. A lab report from B.C.I.

confirmed 96.8 grams found to contain methamphetamine. Royster also identified

State’s exhibits 4-47 (excluding exhibit 19), as photographs identifying items used

in the manufacture of methamphetamine. He identified the photographs as being

true and accurate depictions of what he found on February 1, 2013, items found in

the trailer. Royster testified, with a few exceptions, the majority of the items were

found in the bedroom where Edler and Appellant were located. On cross-

examination, Royster admitted Edler was the intended target of the search warrant

and investigation.

      {¶8} Detective Jason Park of the Pickaway Sheriff’s Office also testified he

was part of the U.S. 23 Major Crime Task Force. He testified as to his training in

undercover narcotics and clandestine “labs,” and as to the process for

manufacturing methamphetamine. Park testified he met with James Mitchell, set

up surveillance equipment, provided Sudafed to Mitchell, and then surveyed

Mitchell as he made contact at the trailer on Villa Drive. Once the Sudafed was

delivered, they maintained contact with Mitchell until a search warrant could be

obtained. Park was involved with the execution of the search warrant. A tactical

                                                          JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                                                           5


team made actual entry and once the residence was secured, Park went in and

assessed the methamphetamine lab. His job was to neutralize (make safe) the area

where the items for manufacture were found. Park testified there were two stages

in process: there was some methamphetamine drying on a plate and there was

some still in liquid form. Park also identified various photographs of items found

inside the trailer, which included a table where the methamphetamine was

“cooked,” with a vent for drying process; a bottle of salt; a plate with

methamphetamine drying; a bottle containing methamphetamine; a mason jar

containing methamphetamine; a hood vented out the wall; a glass plate with

methamphetamine residue; Sudafed; vessels containing liquid fire; glass plate with

funnel and measuring cup; an empty Sudafed box; lithium batteries; Coleman fuel;

and glass mason jars. Park also identified these photographs as true and accurate

depictions of the items found at Edler’s trailer on February 1, 2013.

         {¶9} James Mitchell testified he resided at the trailer on Villa Drive

on February 1, 2013. He testified he approached the Circleville Police

Department and spoke to Detective Royster regarding the manufacture of

methamphetamine at his uncle’s, John Edler’s, residence.2 Mitchell testified

Edler, Appellant, and Christy Lowery were also involved. Appellant was

residing there. Mitchell testified he was motivated to assist the police

2
 He also testified Edler is a brother to his former step-father. Mitchell’s step-father and mother have since divorced.
Mitchell has known Edler approximately 10 years.
                                                                                JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                                 6


because he was trying to “get clean.” He signed paperwork to become a

confidential informant.

      {¶10} Mitchell further testified Edler and Appellant taught him how to make

methamphetamine approximately 1 and ½ weeks before February 1, 2013. He

identified surveillance video which showed him being prepped by the officers to

go to the trailer and then entering the living room of the trailer. Mitchell testified

Edler was telling him he had the wrong type of Sudafed. Mitchell testified the

video was a true and accurate depiction of his first visit to the trailer under

surveillance on February 1, 2013. Mitchell then testified he returned to the officers

and accompanied them to Kroger to get the correct type of Sudafed. Mitchell

testified he was under surveillance again, with a second surveillance video

showing him at his residence being searched and set up by the officers. Then he

returned to the trailer and left the Sudafed. As soon as he entered with the two

boxes of Sudafed, Edler, Appellant, Lowery, and a woman named “Lainey” were

cheering. Mitchell testified this video was also a true and accurate depiction of the

second time he went to the trailer on February 1, 2013. Mitchell delivered the

Sudafed between 1:00 and 2:00 in the afternoon. He stayed in contact with Edler

the rest of the day, by text messaging him on Appellant’s phone. Mitchell further

testified while he was there, they were weighing marijuana. He denied seeing the

actual manufacture of methamphetamine on February 1, 2013.

                                                           JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                           7


      {¶11} The prosecution also presented the testimony of Christy Lowery.

Lowery testified she met Edler through her friend Elaine Crabtree, a couple of days

before Christmas Eve 2012, for the purpose of obtaining crystal methamphetamine.

Appellant was present at Edler’s trailer when she was there and she understood

him to reside there. Lowery considered the trailer to be a “drug house.” She saw

methamphetamine transactions and she testified it was made in the back bedroom.

She knew not to enter the back bedroom when methamphetamine was being made.

Edler and Appellant were allowed in the back bedroom.

      {¶12} The State also called John Edler. He testified he was arrested in

connection with the events of February 1, 2013, at the trailer on Villa Drive, and he

had entered a plea agreement in exchange for his testimony. He admitted he had

previously been to prison for the manufacture of drugs in 2003. Edler testified as

to the methamphetamine-making process. He had lived for two years in the trailer.

At the time, Appellant and Christy Lowery also lived there.

      {¶13} Edler testified he had been “ripped off” by someone he purchased

methamphetamine from, so he studied and learned how to make it. He used

Appellant’s cell phone to access the internet to study. For three months prior to the

arrests at the trailer, Edler and Appellant manufactured methamphetamine every

other day. Edler testified Appellant crushed the Sudafed, opened the batteries,

added the pseudoephedrine, and shook the bottles. Appellant manufactured with

                                                         JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                            8


him every time during the 2-3 month period. Edler testified they sold some of the

methamphetamine and used most of it. Manufacture always took place in the back

bedroom of the trailer. Edler identified photographic exhibits of the back bedroom

and the items used in the manufacturing process. Edler testified he had a lot of

contact with James Mitchell, who was at his trailer daily. Mitchell had observed

the manufacturing process.

      {¶14} Appellant took the stand and denied participating in the manufacture

of methamphetamine on February 1, 2013. He testified he had been drug free for

175 days at the time of trial. Appellant specifically denied crushing pills, peeling

batteries, or assisting in the process of manufacturing methamphetamine. He

admitted he was aware that manufacture took place at the trailer on Villa Drive, but

testified he did not leave because he had nowhere else to live. Appellant also

testified his cell phone had run out of minutes on the night before February 1st and

had no ability to communicate by cell phone. He denied arranging pickup of the

finished product for Edler. He denied texting James Mitchell that the product was

complete. On cross-examination, Appellant testified Edler, Mitchell, and Lowery

were all drug users, and they were all lying. He denied ever participating in the

manufacture of drugs in the past.

      {¶15} Appellant also presented testimony from his sister and mother. Amy

Lynn Yarger, his sister, testified she was unable to make contact with him on

                                                         JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                          9


February 1, 2013, because his phone was disconnected. Appellant’s mother,

Connie De Pugh also testified he had no cell service on February 1, 2013.

      {¶16} The jury returned verdicts of guilty on both charges.

      {¶17} Appellant was sentenced on October 2, 2013. The trial court merged

the two counts for sentencing purposes. The State of Ohio elected to proceed on

Count Two, the second degree felony. Appellant was ordered to serve five years of

incarceration. He was also given a mandatory fine of $7,500.00.

      {¶18} Appellant has filed a timely appeal.

      {¶19} Where relevant, additional testimony of the fact witnesses is set forth

below.

                           ASSIGNMENTS OF ERROR

      “I. EACH OF THE JUDGMENTS OF THE TRIAL COURT AS TO
      BOTH COUNTS ONE AND TWO OF THE INDICTMENT WAS IN
      ERROR AS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO
      FIND THE DEFENDANT MARKIN GUILTY OF VIOLATING
      SECTION 2925.11, AGGRAVATED POSSESSION OF DRUGS, AS
      CHARGED IN COUNT ONE OF THE INDICTMENT, AND NOT
      SUPPORTED BY SUFFICIENT EVIDENCE TO FIND HIM
      GUILTY OF ILLEGAL MANUFACTURE OF DRUGS OR
      CULTIVATION OF MARIJUANA IN VIOLATION OF REVISED
      CODE SECTION 2925.04 AS CHARGED IN COUNT TWO OF
      THE INDICTMENT.”

      “II. EACH OF THE JUDGMENTS OF THE TRIAL COURT AS
      TO COUNTS ONE AND TWO OF THE INDICTMENT WERE
      ERROR AS AGAINST THE MANIFEST WEIGHT OF THE
      EVIDENCE.”

     A. STANDARD OF REVIEW-SUFFICIENCY OF THE EVIDENCE.
                                                        JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                              10


      {¶20} When reviewing a case to determine whether the record contains

sufficient evidence to support a criminal conviction, our function is “to examine

the evidence admitted at trial to determine whether such evidence, if believed,

would convince the average mind of the defendant’s guilt beyond a reasonable

doubt. 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. Smith,

4th Dist. Highland No. 09CA29, 2010-Ohio-4507, ¶18, quoting State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492, (1991), paragraph two of the syllabus. See, also

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979).

      {¶21} This test raises a question of law and does not allow the court to

weigh the evidence. Smith, supra, at ¶19; State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717 (1st Dist.1983). Rather, this test “gives full play to the

responsibility of the trier of fact * * * to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Smith, supra, at ¶19; Jackson at 319. Accordingly, the weight given to the

evidence and the credibility of witnesses are issues for the trier of fact. Smith,

supra at ¶19; State v. Thomas, 70 Ohio St.2d 79, 79-80, 434 N.E.2d 1356 (1982);

State v. De Hass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the

syllabus.

                                                            JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                               11


   B. STANDARD OF REVIEW-MANIFEST WEIGHT OF THE EVIDENCE.

      {¶22} Our function when reviewing the weight of the evidence is to

determine whether the greater amount of credible evidence supports the verdict.

State v. Williams, 4th Dist. Ross No. 03CA2736, 2004-Ohio-1130, ¶28, citing State

v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. Our role is

to determine whether the evidence produced at trial attains the high degree of

probative force and certainty required of a criminal conviction. State v. Hayslip,

4th Dist. Adams No. 05CA812, 2006-Ohio-3120, ¶8, citing State v. Getsy, 84 Ohio

St. 3d 180, 193, 702 N.E.2d 866 (1998). In order to undertake this review, we

must sit as a “thirteenth juror” and review the entire record, weigh the evidence

and all reasonable inferences, consider the credibility of witnesses and determine

whether the trier of fact clearly lost its way and created a manifest miscarriage of

justice. Williams, supra, citing Thompkins, supra; State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1983). If we find that the fact finder clearly lost its

way, we must reverse the conviction and order a new trial. Id. We cannot reverse

a conviction where the state has presented substantial evidence so that a reasonable

trier of fact could conclude that all of the essential elements of the offense were

established beyond a reasonable doubt. Williams, supra; Getsy, supra at 193-194.

We are also guided by the presumption that the trier of fact “is best able to view

the witnesses and observe their demeanor, gestures, and voice inflections, and use

                                                          JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                            12


these observations in weighing the credibility of proffered testimony.” Williams,

supra, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d

1273 (1984).

                               C. LEGAL ANALYSIS

      {¶23} For ease of analysis, we will consider Appellant’s assignments of

error jointly. Appellant argues the prosecution’s case was fatally deficient in

credible evidence as to essential elements of both counts one and two. Appellant

asserts the prosecution’s case rested chiefly on the testimony of John Edler, who

was charged and sentenced on the basis of his participation in the amphetamine

manufacturing scheme, and who reached an agreement whereby he received a

reduced sentence of three years. Appellant contends Edler did not testify as an eye

witness to Appellant’s participation in the crimes, and Appellant’s mere presence

at the trailer was insufficient to support his convictions.

      {¶24} Appellee responds by acknowledging the State’s key witness was co-

defendant Edler. However, Appellee also points out the prosecution produced the

testimony of James Mitchell and Christy Lowery. Appellee concludes when

reviewing the testimony in its entirety, there was enough evidence to meet both a

“sufficiency-of-the-evidence” standard and a “manifest-weight-of-the-evidence”

standard.




                                                              JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                         13


      {¶25} Appellant was convicted of count one, possession of drugs, a violation

of R.C. 2925.11(A)(C)(1)(b), which provides:

      “(A) No person shall knowingly obtain, possess, or use a controlled
      substance or a controlled substance analog.

      (C) Whoever violates division (A) of this section is guilty of one of
      the following:

      (1) If the drug involved in the violation is a compound, mixture,
      preparation, or substance included in schedule I or II, with the
      exception of marijuana, cocaine, L.S.D., heroin, hashish, and
      controlled substance analogs, whoever violates division (A) of this
      section is guilty of aggravated possession of drugs. The penalty for
      the offense shall be determined as follows:

      (b) If the amount of the drug involved equals or exceeds the bulk
      amount but is less than five times the bulk amount, aggravated
      possession of drugs is a felony of the third degree, and there is a
      presumption for a prison term for the offense.”

      {¶26} Appellant was also convicted of count two, illegal manufacture of

drugs-illegal cultivation of marihuana-methamphetamine offense, a violation of

R.C. 2925.04(A)(C)(3)(a), which provides:

      “(A) No person shall knowingly cultivate marijuana or knowingly
      manufacture or otherwise engage in any part of the production of a
      controlled substance.

      (C)(3) If the drug involved in the violation of division (A) of this
      section is methamphetamine, the penalty for the violation shall be
      determined as follows:

      (a) Except as otherwise provided in division (C)(3)(b) of this section,
      if the drug involved in the violation is methamphetamine, illegal
      manufacture of drugs is a felony of the second degree, and subject to

                                                         JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                            14


      division (E) of this section, the court shall impose a mandatory prison
      term on the offender determined in accordance with this division.”

      {¶27} Both counts require the State of Ohio prove that Appellant acted

“knowingly.” Pursuant to R.C. 2901.22(B), the trial court instructed:

      “A person acts ‘knowingly,’ regardless of his purpose, when he is
      aware that his conduct will probably cause a certain result or be of a
      certain nature. A person has knowledge of circumstances when he is
      aware that such circumstances probably exist. Stated another way,
      ‘knowingly’ means that a person is aware of the existence of the fact
      and that his acts will probably cause a certain result or be of a certain
      nature. Since you cannot look into the mind of another, knowledge is
      determined from all the facts and circumstances in evidence. You will
      determine from the facts and circumstances whether there existed at
      the time in the mind of the defendant an awareness of the probability
      that he was in possession of a controlled substance. You will also
      determine from these facts and circumstances whether there existed at
      the time in the mind of the defendant an awareness of the probability
      that he was manufacturing or engaging in a part of the production of
      methamphetamine.”

      {¶28} In the case, sub judice, the State of Ohio was also required to prove

“possession.” Possession of a controlled substance may be actual or constructive.

State v. Williams, 4th Dist. Ross No. 03CA2736, 2004-Ohio-1130, ¶23. See State

v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351(1976) (Internal citations

omitted.). A person has “actual possession” of an item if the item is within his

immediate physical possession. Williams, supra, citing State v. Fugate, 4th

Dist.Washington No. 97CA2546, 1998 WL 729221, *7. “Constructive

possession” exists when an individual is able to exercise domination and control

over an item, even if the individual does not have immediate physical possession
                                                         JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                            15


of it. Williams, supra, citing State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d

1362 (1982), syllabus. For constructive possession to exist, “[i]t must also be

shown that the person was conscious of the presence of the object.” Williams,

supra, quoting Hankerson, 70 Ohio St.2d at 91, 434 N.E.2d 1362. The state may

prove the existence of the various components of constructive possession of

contraband by circumstantial evidence. Williams, supra, citing State v. Jenks, 61

Ohio St.3d 259, 272-273, 582 N.E.2d 552 (1991). Moreover, two or more persons

may have joint constructive possession of a particular item. Williams, supra, citing

State v. Mann, 93 Ohio App.3d 301, 308, 638 N.E.2d 585 (8th Dist.1993).

      {¶29} A defendant’s mere presence in an area where drugs are located does

not conclusively establish constructive possession. Williams, supra, at ¶25; State v.

Cola, 77 Ohio App.3d 448, 450, 602 N.E.2d 730 (11th Dist.1991); Cincinnati v.

McCartney, 30 Ohio App.2d 45, 48, 281 N.E.2d 855 (1st Dist.1971). However, a

defendant’s proximity to drugs may constitute some evidence of constructive

possession. Williams, supra, at 25. Mere presence in the vicinity of drugs, coupled

with another factor probative of dominion or control over the contraband, may

establish constructive possession. Fugate, at *8. Under this framework, Appellant

argues he was simply present when the officers executed the warrant at the trailer

on Villa Drive, but no eye-witness evidence implicates him.

       {¶30} Here, the trial court also instructed:

                                                         JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                            16


      “ ‘Possess’ or “possession’ means having control over a thing or
      substance that 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.”

      {¶31} We must disagree with Appellant’s argument as we find there was

evidence such that any rational trier of fact could have found the essential elements

of count one, possession of drugs, and count two, illegal manufacture of drugs,

proven beyond a reasonable doubt. The jury had for its consideration, not only

Appellant’s presence in the trailer’s back bedroom, where officers testified the

precursors for manufacturing methamphetamine were found, but also the testimony

of Mitchell, Edler, and Lowery. The evidence provided by Mitchell and Lowery

bolsters the testimony provided by Edler and, taken in its entirety, supports the

conclusion that Appellant knowingly possessed drugs and participated in the

manufacture of methamphetamine on February 1, 2013.

      {¶32} Mitchell testified he approached the police for the purpose of turning

in Edler, Appellant, and Lowery. As to the events of February 1, 2013, Mitchell

testified he delivered Sudafed to the trailer and stayed in contact with Edler

through Appellant’s cell phone. True, Appellant’s cross-examination elicited

testimony from Mitchell that he never interacted with Appellant on his two visits to

the trailer on February 1, 2013, and Appellant never instructed him on the

arrangements. Mitchell also admitted he did not have verification of any text

messages sent to him by Appellant on the date in question.
                                                          JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                            17


      {¶33} Lowery testified the trailer was a “drug house.” She testified “half of

Circleville” stayed there at times. She saw methamphetamine transactions and she

knew it was being made in the trailer’s back bedroom. When she purchased

methamphetamine, it was from Edler or from the Appellant. Lowery’s testimony,

along with Mitchell’s, supports the inference that Appellant knew how to make

methamphetamine and had previously done so in the trailer’s back bedroom.

      {¶34} However, as to the specific events of February 1, 2013, Lowery

specifically testified she had been at the trailer numerous times and was waiting on

methamphetamine to be made. Lowery identified the video which showed how the

trailer looked on February 1, 2013. She identified people screaming and cheering

on the video because Mitchell had brought the Sudafed. Lowery testified when the

officers kicked the door in, she and Matt Griffin were in the bathroom and Edler

and Appellant were in the bedroom. She had $40.00 in her pocket she was

planning to purchase methamphetamine. Lowery’s testimony directly implicates

Appellant in the manufacturing activities on the date in question.

      {¶35} At trial, Edler seemed to have trouble recalling events on February 1,

2013, so the prosecutor played the first video. Edler acknowledged hearing some

conversation about generic Sudafed. He testified manufacture is easier with a

generic version. He recalled sending Mitchell to get a different type of Sudafed.




                                                         JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                                                    18


           {¶36} The prosecutor also played the second video. Edler recalled when the

law enforcement officers burst in on February 1, 2013; he was in the back bedroom

with Appellant, Lowery, and Matt Griffin. Edler specifically testified he and

Appellant had manufactured methamphetamine on February 1, 2013. Appellant

helped in the initial stages. Appellant crushed the Sudafed pills,3 “opened the

tunnel to a bottle,” and peeled batteries.4 He believed Appellant was with him

during the entire manufacturing process on February 1, 2013, but there were times

when Appellant would leave to clean the bathroom where they mixed the

chemicals. Edler specifically testified:

            “Sometimes it would be after I would get down to where let it set 15
           minutes, that’s usually when he would come and clean. Other than
           that, he was in the room with me.”

    Prior to the officers’ arrival, they had just completed the process. When the police

arrived, Appellant was beside him on his left in the back bedroom. Lowery and

Griffin were also there but ran through the door to the bathroom.

           {¶37} Based upon our review of the evidence adduced at trial, we find a

rational trier of fact could have found the essential elements of possession of drugs

3
    Edler testified as follows:

           Q:        And on February 1st, who crushed the pills?
           A:        I believe Will Markin.
           Q:        Do you know or you believe?
           A:        I believe it was. He usually did it all the time.
           Q:        Did you do it that day?
           A:        No.
4
 Edler testified Appellant crushed the pills, usually at the kitchen sink or on the kitchen table. He testified
Appellant peeled the batteries in the bathroom.
                                                                          JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                               19


and illegal manufacture of drugs proven beyond a reasonable doubt. Although

Appellant took the stand and denied participation in these crimes, the combined

testimony of Mitchell, Edler, and Lowery is strong evidence that Appellant

knowingly participated in the crimes charged on February 1, 2013.

      {¶38} We turn next, to analysis of the evidence under a “manifest weight”

standard. We begin by noting in State v. Hayslip, 4th Dist. Adams No. 05CA812,

2006-Ohio-3120. Hayslip was indicted and convicted of the illegal manufacture of

drugs, in violation of R.C. 2925.04. On appeal, Hayslip argued his trial counsel

provided him ineffective assistance and also argued his conviction was against the

manifest weight of the evidence. At Hayslip’s trial, the jury heard testimony about

the types of materials found in Hayslip’s presence at the crime scene, and that

these materials were commonly used for the manufacture of methamphetamine.

The jury also heard testimony from Hayslip’s co-defendant, Carter, that placed

Hayslip at the scene of the crime on the day in question, that Hayslip was familiar

with the scene of the crime (a shed) and had access to it, and further, that Hayslip

was regularly present in the shed with another co-defendant when the shed was

used to manufacture methamphetamine.

      {¶39} Another co-defendant, Blythe, also testified Hayslip and he had

manufactured methamphetamine in the shed before and on the day in question.

The jury also heard testimony from a forensic scientist from BCI about the

                                                          JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                            20


manufacturing process and the ingredients and materials used. The scientist

testified that several exhibits contained methamphetamine residue and that pills

found in the shed contained pseudoephedrine. Upon review, we concluded that

each element of R.C. 2925.04 was proven beyond a reasonable doubt and that the

jury did not lose its way. We overruled Hayslip’s assignment of error and affirmed

the trial court’s judgment.

      {¶40} As in Hayslip, we have applied the foregoing principles and find

substantial and credible evidence on all elements of the counts charged from which

a reasonable jury could conclude that Appellant knowingly possessed drugs and

participated in the manufacture of drugs. Although Appellant argues there was no

eye-witness testimony but for the testimony of his co-defendant Edler, and that

Edler’s testimony is not credible, the complete testimony, set forth above, makes it

clear that Appellant was being referenced in the mutual activities which occurred

at the trailer on Villa Drive on February 1, 2013. Appellant was present at the

trailer with the co-defendants at the time the officers arrived and found the

ingredients used to manufacture methamphetamine, as well as completed product.

However, other factors coupled with Appellant’s presence lead us to our

conclusion. The evidence at trial also demonstrated Appellant had participated in

the past by crushing Sudafed and peeling batteries. Edler’s testimony that

Appellant participated by crushing Sudafed and peeling batteries on February 1,

                                                          JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                              21


2013 directly implicates Appellant. Both Edler and Lowery’s testimony that

Appellant was present in the room with Edler on February 1, 2013 further directly

connects Appellant to the crimes charged.

       {¶41} We also note in resolving conflicts of the evidence, the jury was in

the best position to observe the witnesses, weigh their demeanor, and any gestures

or voice inflections, and determine their credibility. The jury was instructed as to

the legal definitions of direct evidence, circumstantial evidence, and credibility.

The jury was instructed that as to the weight of the evidence, they were free to

believe all, part or none of any witness’s testimony.

      {¶42} Mitchell’s credibility was one issue for the jury’s consideration. On

cross-examination, Mitchell testified he is unemployed. He admitted he has used

illegal substances in the past. He testified he was present in the room where

methamphetamine was being made 1 and ½ weeks before February 1, 2013. He

testified Lowery was present at that time and knew what was going on. He

admitted he was present because he was going to receive methamphetamine and

because he was being taught how to make it.

      {¶43} Lowery’s and Edler’s credibility was also at issue. Lowery

acknowledged she was charged in the incident and had entered a plea agreement.

On cross-examination, she admitted she had previously been to prison. On cross-

examination, Edler admitted he was currently in prison and had received a

                                                          JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                           22


substantial reduction of prison time from what he was facing, having been charged

with two felonies after the February 1, 2013 incident. He admitted

methamphetamine use since 1985.

      {¶44} Importantly, the jury was instructed about the testimony of

accomplices as follows:

      “Ladies and gentlemen, you have heard the testimony from John C.
      Edler and Christy Lowery, other persons who have pled guilty to
      crimes charged from this incident and are said to be accomplices. An
      accomplice is one who knowingly assists or joins another in the
      commission of a crime. The weight to give to their respective
      testimony are matters for you to determine from all the facts and
      circumstances in evidence. The testimony of an accomplice does not
      become inadmissible because of his or her complicity, moral
      turpitude, or self interest, but the admitted or claimed complicity of a
      witness may affect his or her credibility and make their testimony
      subject to grave suspicion, and required that it be weighed with
      greater caution. It is for you, as jurors, in light of all the facts
      presented to you and from the witness stand, to evaluate such
      testimony and to determine its quality and worth or its lack of quality
      and worth. An accomplice may have special motives in testifying,
      and you should carefully examine an accomplice’s testimony and use
      it with great caution and view it with grave suspicion.

      {¶45} The jurors were in the best position to observe Appellant and judge

his credibility. They were also in the best position to observe Edler and Lowery

and to evaluate their credibility in giving testimony against Appellant. Having

done so, we cannot say the jury clearly lost its way and created a manifest

miscarriage of justice. Accordingly, we therefore overrule both assignments of

error and affirm the judgment of the trial court.

                                                         JUDGMENT AFFIRMED.
Pickaway App. No. 13CA22                                                              23


                               JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Pickaway 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 proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier 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 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. & Hoover, J.: Concur in Judgment and Opinion.

                                        For the Court,


                                 BY: ___________________________________
                                     Matthew W. McFarland, 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.
                                                           JUDGMENT AFFIRMED.
