[Cite as State v. Jones, 2016-Ohio-7277.]


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

STATE OF OHIO                                        C.A. No.     27732

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MICHAEL A. JONES                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 2014 10 3070

                                  DECISION AND JOURNAL ENTRY

Dated: October 12, 2016



        CARR, Presiding Judge.

        {¶1}     Defendant-Appellant, Michael Jones, appeals from his convictions in the Summit

County Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     Following a tip he received from an informant, Detective Paul Laurella asked

another detective to help him conduct nighttime surveillance at a house on First Street in

Barberton. The informant stated that Richard Keith, the resident of the house, and another

unknown man would be manufacturing methamphetamine there sometime that evening.

Accordingly, the two detectives waited outside the house and watched for any suspicious

behavior. After several hours, Detective Laurella observed someone inside the house turn on a

window fan and, soon afterward, smelled a distinct order, which he associated with

methamphetamine production. He and his fellow detective then called for assistance and entered

the house with the help of other officers.
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       {¶3}    Inside the house, the police discovered numerous ingredients associated with

methamphetamine production as well as a two-liter bottle. The two liter bottle contained an

active chemical mixture that Detective Laurella recognized as the reactionary phase of the

methamphetamine production process. The police searched the remainder of the house and

found Jones in one of the home’s bedrooms, lying beside his sleeping fifteen-year-old cousin.

The police ultimately arrested both Keith and Jones, and Detective Laurella later interviewed

Jones at the police station. During his interview, Jones admitted that both he and Keith had been

manufacturing methamphetamine, with each man fulfilling a separate role in the manufacturing

process.

       {¶4}    A grand jury indicted Jones on each of the following counts: (1) illegal assembly

or possession of chemicals for the manufacture of methamphetamine in the vicinity of a juvenile;

(2) illegal manufacture of methamphetamine in the vicinity of a juvenile; and (3) endangering

children. Following his trial, a jury found Jones guilty on all three counts. The court sentenced

Jones to seven years in prison on his illegal assembly count, seven years in prison on his illegal

manufacturing count, and three years in prison on his endangering count. The court ordered all

of his prison terms to run concurrently for a total sentence of seven years in prison.

       {¶5}    Jones now appeals from the trial court’s judgment and raises two assignments of

error for our review.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       APPELLANT’S CONVICTION WAS BASED UPON INSUFFICIENT
       EVIDENCE TO SUSTAIN A CONVICTION. THE TRIAL COURT ERRED
       BY DENYING APPELLANT’S CRIM.R. 29 MOTION.
                                                 3


       {¶6}    In his first assignment of error, Jones argues that his convictions are based on

insufficient evidence, and that the trial court erred when it denied his Crim.R. 29 motion for

acquittal. We disagree with both propositions.

       {¶7}    Crim.R. 29(A) provides, in relevant part:

       The court on motion of a defendant or on its own motion, after the evidence on
       either side is closed, shall order the entry of a judgment of acquittal of one or
       more offenses charged in the indictment * * * if the evidence is insufficient to
       sustain a conviction of such offense or offenses. The court may not reserve ruling
       on a motion for judgment of acquittal made at the close of the state’s case.

When reviewing the sufficiency of the evidence, this Court must review the evidence in a light

most favorable to the prosecution to determine whether the evidence before the trial court was

sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction 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.

Id. at paragraph two of the syllabus.

       {¶8}    “Methamphetamine is a schedule II controlled substance.” State v. Gregory, 9th

Dist. Summit No. 27523, 2015-Ohio-4901, ¶ 18. The Revised Code prohibits any person from

“knowingly assembl[ing] or possess[ing] one or more chemicals that may be used to

manufacture a controlled substance in schedule I or II with the intent to manufacture a controlled

substance in schedule I or II * * *.” R.C. 2925.041(A). Likewise, it prohibits any person from

“knowingly manufactur[ing] or otherwise engag[ing] in any part of the production of a

controlled substance.” R.C. 2925.04(A). If an individual commits either of the foregoing acts on
                                                 4


the same parcel of real property on which a child is present, the individual is also guilty of child

endangering. R.C. 2919.22(B)(6), (E)(1).

       {¶9}    Detective Laurella testified that, on September 29, 2014, he decided to conduct

surveillance at a house on First Street because he received a tip from an informant. The

informant had told him that Richard Keith, the resident of the house, and “an unknown guy”

would be manufacturing methamphetamine that evening.            Detective Laurella asked another

detective, Detective Antenucci, to accompany him and testified that they arrived at the house at

about 9:30 p.m.

       {¶10} While Detective Laurella was still inside his car looking for a place to conduct his

surveillance, he saw two people walking down First Street. He testified that he recognized one

of the individuals as being involved with methamphetamine production and that, as he watched,

the two individuals walked around the back of the house that he intended to surveil. Detective

Laurella testified that he decided to have Detective Antenucci watch the front of the house while

he watched the back. He ultimately chose to conduct his surveillance from an alley that was

approximately 40 to 50 feet away from the house.

       {¶11}      Detective Laurella testified that he watched the house for several hours and,

during that time, received another tip that Keith and his associate “were definitely going to start

[manufacturing methamphetamine] sometime tonight.”           As he watched the house, he saw

someone inside turn on a small double window fan. Detective Laurella stated that the activation

of the fan was significant to him because, in his experience, people commonly use fans to vent

chemicals when they are producing methamphetamine.              Consistent with his experience,

Detective Laurella soon noticed a strong chemical smell that he recognized as “the odor that’s

produced when you manufacture methamphetamine.”
                                                  5


       {¶12} Because they believed someone was in the process of manufacturing

methamphetamine inside the home, Detective Laurella and Detective Antenucci requested back

up. Other officers soon arrived, and the police knocked on the door of the house. Keith

answered the door, and Detectives Laurella and Antenucci went inside. Detective Laurella stated

that the chemical smell that he recognized outside was even stronger in the house. He and his

fellow officers located several individuals in the house, including Jones. Detective Laurella

testified that Jones was lying in the same bed as his sleeping cousin, but was fully clothed,

appeared very nervous, and “was sweating profusely.” Approximately 20 to 30 feet away from

the bedroom where the police found Jones, Detective Laurella testified that they found an active

meth lab.

       {¶13} Detective Laurella testified that, inside the house, the police found numerous

items that are used in the production of methamphetamine. Specifically, they found bottles of

acetone, lye, and drain opener together in a trash receptacle, a Pyrex dish containing ice water,

plastic tubing, a coffee maker with no coffee pot, Zippo lighter fluid, a bottle of unknown acid

that was thought to be muriatic acid, Nitrile gloves, pseudoephedrine pills, lithium batteries, foil,

and aluminum nitrate cold packs. The police also found a two-liter bottle that Detective Laurella

identified as a reactionary vessel for the reactionary phase of methamphetamine production. He

testified that the bottle was emitting a hissing sound when he came close to it and had a very

strong chemical smell. Although Detective Laurella initially thought that someone had left the

bottle’s cap loosened for ventilation purposes, he saw that the structure of the bottle had actually

failed and that the bottle was leaking fuel and ammonia gas. He testified that he quickly put on

his fireproof gear and took the bottle outside.
                                                6


       {¶14} Detective Laurella testified that Jones was taken into custody in connection with

the active methamphetamine lab that the police discovered. On October 1, 2014, he interviewed

Jones at the police station.       During the interview, Jones admitted that he brought

pseudoephedrine pills with him to the house on First Street and that he and Keith were in the

process of producing methamphetamine when the police arrived. Specifically, he stated that

Keith had heated the fuel for him while he soaked the pseudoephedrine pills in acetone, cut

batteries to access their lithium centers, and added the content of the cold packs to the mixture.

Detective Laurella testified that Jones’ mention of using acetone to help breakdown the

pseudoephedrine pills solidified his belief that Jones was involved in the production process

because that was “even more than some meth cooks * * * know to do.”

       {¶15} As part of his investigation, Detective Laurella testified that he also searched

NPLEx. He explained that NPLEx is a database that law enforcement and pharmacies use to

track the sales of pseudoephedrine.     He testified that the database showed that Jones had

purchased: (1) 1.44 grams of pseudoephedrine from a pharmacy in Akron on September 23,

2014; and (2) 2.4 grams of pseudoephedrine from a pharmacy in Fairlawn on September 28,

2014. He stated that individuals who purchase pseudoephedrine pills for methamphetamine

production purposes often buy the pills at different pharmacies to try to avoid detection. He

noted that Jones made his second purchase the day before he was arrested in connection with the

active methamphetamine lab.

       {¶16} Jones argues that his convictions are based on insufficient evidence because there

was no evidence that he was involved in the production of methamphetamine on the evening of

his arrest. He notes that the police found him in a bedroom, alongside his sleeping cousin and

that no methamphetamine production materials were found in that bedroom. He argues that his
                                                7


mere presence in the house where methamphetamine was being produced was insufficient

evidence to show that he knowingly manufactured the drug or knowingly possessed any of the

chemicals necessary to manufacture the drug.

       {¶17} Viewing the State’s evidence in a light most favorable to the prosecution, a

rational trier of fact could have concluded that the State set forth sufficient evidence that Jones

knowingly possessed illegal chemicals and knowingly manufactured methamphetamine on the

night in question. See Jenks, 61 Ohio St.3d 259 at paragraph two of the syllabus. The State’s

evidence was not limited to establishing Jones’ presence in the house on First Street. The State

set forth evidence that he purchased pseudoephedrine pills on two separate occasions in the days

before his arrest. It also introduced Jones’ interview with Detective Laurella, during which he

admitted that he was involved in the manufacturing process. Jones admitted that he purchased

pseudoephedrine pills and used acetone to break down the pills while Keith heated fuel for him.

He further admitted that he cut apart batteries and added cold packs to the chemical mixture.

There was evidence that the house on First Street had a very strong chemical smell when police

arrived and that, when Detective Laurella found Jones, he was fully clothed, very nervous, and

“sweating profusely.” Given all of the evidence the State introduced, the jury reasonably could

have concluded that the State proved its case against Jones beyond a reasonable doubt.

Consequently, Jones’ convictions are not based on insufficient evidence, and his first assignment

of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE JURY VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶18} In his second assignment of error, Jones argues that his convictions are against the

manifest weight of the evidence. We disagree.
                                                 8


       {¶19} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review the entire record, weigh the evidence
       and all reasonable inferences, consider the credibility of witnesses and determine
       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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the

conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An

appellate court should exercise the power to reverse a judgment as against the manifest weight of

the evidence only in exceptional cases. Otten at 340.

       {¶20} At trial, Richard Keith testified for the defense. Keith testified that Jones was his

nephew by marriage and that, on the night in question, Jones had come to his house to shower

and rest.   According to Keith, Jones was asleep at the time that he began manufacturing

methamphetamine. Keith confirmed that he pleaded guilty to reduced charges after he was

indicted in connection with this incident.      He insisted that Jones was not involved in the

manufacturing process. Nevertheless, Keith admitted that he made several recorded phone calls

while being held at the jail on his charges. He admitted that, in those phone calls, he disclaimed

responsibility for the two-liter bottle that the police found at his house and stated that it was

Jones who had possession of the bottle. According to Keith, he lied during the phone calls

because his case had not yet been resolved and he was unwilling to take responsibility for his

actions before that occurred.
                                                  9


       {¶21} Jones argues that his convictions are against the manifest weight of the evidence

because Keith’s testimony established that Keith was responsible for manufacturing the

methamphetamine that the police found at his house. According to Jones, the jury lost its way

when it convicted him because the evidence established that he was not in possession of any

methamphetamine-related items when the police found him and that he had merely come to

Keith’s house to sleep.

       {¶22} Having reviewed the record, we cannot conclude that the jury lost its way when it

convicted Jones. Although Keith testified that Jones did not help him produce methamphetamine

on the evening in question, he admitted that he had previously made statements implicating

Jones. Moreover, the State produced the recording of Jones’ interview with Detective Laurella,

during which Jones admitted that he purchased pseudoephedrine pills and helped Keith

manufacture methamphetamine that evening. Detective Laurella testified that Jones possessed

very specific knowledge about the manufacturing process, as he was able to tell the detective that

acetone could be used to help break down pseudoephedrine pills. The detective also testified that

Jones did not appear to have been sleeping when the police arrived because he was fully clothed,

nervous, and “sweating profusely.” The jury here “was in the best position to evaluate the

credibility of the witnesses, and this Court will not overturn the trial court’s verdict on a manifest

weight of the evidence challenge simply because the jury chose to believe certain witnesses’

testimony.” State v. Velez, 9th Dist. Lorain No. 14CA010683, 2016-Ohio-2875, ¶ 11. Upon

review, this is not the exceptional case where the jury clearly lost its way. See Otten, 33 Ohio

App.3d at 340. Jones’ argument that his convictions are against the manifest weight of the

evidence lacks merit. As such, his second assignment of error is overruled.
                                                10


                                                III.

       {¶23} Jones’ assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

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

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

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

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

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

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

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

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

       Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT



MOORE, J.
SCHAFER, J.
CONCUR.
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APPEARANCES:

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

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
