[Cite as State v. Horner, 2017-Ohio-7355.]


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

STATE OF OHIO                                         C.A. No.       16AP0053

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
PAUL F. HORNER, II                                    COURT OF COMMON PLEAS
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   2016 CRC-I 000010

                                 DECISION AND JOURNAL ENTRY

Dated: August 28, 2017



        HENSAL, Presiding Judge.

        {¶1}     Paul Horner appeals his convictions and sentence from the Wayne County Court

of Common Pleas. We affirm in part, and reverse in part.

                                                 I.

        {¶2}     This appeal concerns Paul Horner’s involvement with a failed attempt to

manufacture methamphetamine. According to Mr. Horner, he left his apartment one evening,

which was on the third floor of a boarding house, to buy groceries. When he returned home, J.S.,

whom he knew, was there visiting a housemate. J.S. followed Mr. Horner into his apartment.

Mr. Horner then went downstairs to the communal kitchen to make dinner. Mr. Horner testified

that J.S. then returned to the other housemate’s room. Shortly thereafter, Mr. Horner heard an

explosion and ran upstairs toward his apartment. As he was doing so, J.S. ran past him on fire.

Mr. Horner told a housemate to call 911, and told another housemate, who had a young child

with her, to get out of the house. Mr. Horner then put out the fire in his apartment.
                                               2


       {¶3}    J.S., however, presented conflicting testimony. According to J.S. Mr. Horner

asked him to come to his apartment to make methamphetamine. Mr. Horner told J.S. to bring

batteries and Sudafed, but indicated that he had everything else needed to make

methamphetamine.      J.S. testified that Mr. Horner placed the items necessary to make

methamphetamine in a plastic bottle. Mr. Horner instructed J.S. to “gas the bottle[,]” and then

went downstairs, locking the door behind him. Shortly thereafter, the bottle exploded and a fire

erupted. J.S. managed to put out most of the fire, but sustained second-degree burns in the

process. As soon as Mr. Horner unlocked the apartment door, J.S. ran down the stairs and out of

the house.

       {¶4}    A Grand Jury indicted Mr. Horner on counts for aggravated arson in violation of

Revised Code Section 2909.02(A)(1); aggravated arson in violation of Section 2909.02(A)(2);

illegal manufacture of drugs (methamphetamine) in violation of Section 2925.04(A); illegal

assembly or possession of chemicals for the manufacture of drugs (methamphetamine) in

violation of Section 2925.041(A); and endangering children in violation of Section

2919.22(B)(6). Mr. Horner pleaded not guilty, and the case proceeded to a bench trial.

       {¶5}    The trial court found Mr. Horner not guilty of the arson counts, but guilty of the

remaining counts. The trial court sentenced him to four years of imprisonment for the illegal-

manufacture offense, three years of imprisonment for the illegal-assembly offense, and two years

of imprisonment for the endangering-children offense. The trial court ordered the sentences to

run concurrently for a total stated prison term of four years. Mr. Horner now appeals, raising

three assignments of error for our review.
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                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT’S JUDGMENT CONVICTING MR. HORNER OF
       ILLEGALLY MANUFACTURING METHAMPHETAMINE WAS NOT
       SUPPORTED BY SUFFICIENT EVIDENCE.

       {¶6}    In his first assignment of error, Mr. Horner argues that his conviction for illegally

manufacturing methamphetamine was not supported by sufficient evidence.                 Whether a

conviction is supported by sufficient evidence is a question of law, which we review de novo.

State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In making this determination, we must view

the evidence in the light most favorable to the prosecution:

       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.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶7}    Section 2925.04(A), under which Mr. Horner was convicted, provides that “[n]o

person shall * * * knowingly manufacture or otherwise engage in any part of the production of a

controlled substance.” Mr. Horner argues that this Section requires the actual production of a

controlled substance.     Here, he argues, there was simply an attempt to manufacture

methamphetamine, which is insufficient to support a conviction under Section 2925.04(A). This

Court, however, has previously rejected this same argument.

       {¶8}    In State v. Gerhart, the defendant, like here, challenged the sufficiency of his

illegal-manufacture conviction on the basis that the State failed to present evidence indicating

that he actually produced methamphetamine. 9th Dist. Summit No. 24384, 2009-Ohio-4165, ¶
                                                 4


14. In rejecting the defendant’s argument, this Court stated that “R.C. 2925.04(A) contains no

requirement that evidence of a manufactured product must be produced in order to obtain a

conviction.” Id. at ¶ 15. Thus, based upon the argument presented and this Court’s precedent,

we overrule Mr. Horner’s first assignment of error.

                                   ASSIGNMENT OF ERROR II

       THE TRIAL COURT’S JUDGMENT OF CONVICTION IS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶9}    In his second assignment of error, Mr. Horner argues that his convictions were

against the manifest weight of the evidence. If a defendant asserts that a 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).

       {¶10} Weight of the evidence pertains to the greater amount of credible evidence

produced in a trial to support one side over the other side. Thompkins, 78 Ohio St.3d at 387. An

appellate court should only exercise its power to reverse a judgment as against the manifest

weight of the evidence in exceptional cases. State v. Carson, 9th Dist. Summit No. 26900, 2013-

Ohio-5785, ¶ 32, citing Otten at 340.

       {¶11} The crux of Mr. Horner’s manifest-weight argument is that J.S.’s testimony was

not credible, and that it was contradicted by other witnesses.          As this Court has stated,

“[c]redibility determinations are primarily within the province of the trier of fact[,]” who is

“‘free to believe all, part, or none of the testimony of each witness.’” State v. Just, 9th Dist.

Wayne No. 12CA0002, 2012–Ohio–4094, ¶ 42, citing State v. Violett, 9th Dist. Medina No.
                                                5


11CA0106–M, 2012–Ohio–2685, ¶ 11; State v. Cross, 9th Dist. Summit No. 25487, 2011–Ohio–

3250, ¶ 35, quoting Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004–Ohio–7184, ¶ 35.

Here, the trial court chose to believe the State’s version of the events, which is not a basis for

reversal. State v. Knicely, 9th Dist. Wayne No. 10CA0029, 2011-Ohio-4879, ¶ 20 (“[T]he fact

that the [trier of fact] chose to believe the State’s version of the events is not a basis for

reversal.”). Having reviewed the record, we cannot say that the trial court clearly lost its way by

finding Mr. Horner guilty of the illegal-manufacture, illegal-assembly, and endangering-children

offenses. Accordingly, Mr. Horner’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED BY FINDING THAT THE OFFENSES MR.
       HORNER WAS CONVICTED OF WERE NOT ALLIED OFFENSES OF
       SIMILAR IMPORT.

       {¶12} In his third assignment of error, Mr. Horner argues that the trial court erred by

finding that his convictions for illegal manufacture, illegal assembly, and endangering children

were not allied offenses of similar import. The State concedes that Mr. Horner’s convictions for

illegal manufacture and illegal assembly are allied offenses, but argues that his remaining

conviction (i.e., endangering children) should not merge.

       {¶13} At the sentencing hearing, Mr. Horner’s trial counsel argued that all three of Mr.

Horner’s convictions were allied offenses of similar import and, accordingly, should merge for

purposes of sentencing. In rendering its sentence, the trial court stated that it was “not sure if

they are allied offenses, but, the court will run all sentences concurrently[.]” The trial court,

therefore, did not make a determination as to whether Mr. Horner’s convictions were allied

offenses of similar import. Further, the imposition of concurrent sentences is not the equivalent

of merging allied offenses.    State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, ¶ 17.
                                                 6


Because it is unclear from the face of the record whether these offenses could not merge, we

remand this matter to the trial court for it to make a determination in that regard in the first

instance. State v. Burge, 9th Dist. Lorain No. 16CA010936, 2017-Ohio-5836, ¶ 46. Mr.

Horner’s third assignment of error is sustained on that basis.

                                                III.

       {¶14} Mr. Horner’s first and second assignments of error are overruled. Mr. Horner’s

third assignment of error is sustained. The judgment of the Wayne County Court of Common

Pleas is affirmed in part, reversed in part, and the matter is remanded for further proceedings

consistent with this decision.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.



       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 Wayne, 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.
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      Costs taxed equally to both parties.




                                                 JENNIFER HENSAL
                                                 FOR THE COURT



SCHAFER, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

PATRICK L. BROWN, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
