[Cite as State v. Payne, 2016-Ohio-1301.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2015-A-0036
        - vs -                                  :

TYLER S.D. PAYNE,                               :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2013
CR 25.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Michelle M. French, Law Offices of Michelle M. French, LLC, P.O. Box 293, Jefferson,
OH 44047 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Tyler S.D. Payne, appeals from the judgment of the Ashtabula

County Court of Common Pleas, convicting him of illegal manufacture of drugs. We

affirm the judgment.

        {¶2}     On December 8, 2012, Richard Loveridge was visiting 3228 Altman Court,

an apartment managed by the Ashtabula Metropolitan Housing Authority (“AMHA”).

Vernotta Jiminez was the resident of the apartment and appellant spent significant time
at the residence. Loveridge was repairing appellant’s car, which he regularly did in

exchange for methamphetamine.        After fixing the vehicle, Loveridge went into a

neighboring apartment to visit a friend, Brittany Gregory. In addition to obtaining drugs

for his work as a mechanic, Loveridge testified he was waiting for either Vernotta or

appellant to deliver a key to him. The purpose of the key was not disclosed.

      {¶3}    After visiting with Brittany, Loveridge left her apartment and proceeded to

Vernotta’s home. As he approached Vernotta’s apartment, however, he noticed smoke.

He entered the apartment, and observed the kitchen engulfed in flames. Loveridge

observed Vernotta as well as appellant in the apartment. Loveridge, realizing he had

drugs and needles on him, subsequently left the scene in his vehicle accompanied by

appellant, Vernotta, and another woman named Kaitlyn. The fire caused $83,000 in

damages to AMHA property.

      {¶4}   Security Technologies provided a full service security system for the

AMHA’s properties.      According to Larry DeGeorge, owner of the company, a

surveillance camera was monitoring Altman Court on December 8, 2012. Once the fire

was apparent from the camera, a dispatcher notified authorities. Video footage of the

fire was saved and forwarded to the police.

      {¶5}   Ashtabula City Fire Chief, Ronald Pristera, responded to the fire. Once

the fire was extinguished, Chief Pristera noticed a 20-ounce bottle in the kitchen sink

with water running over it. The bottle appeared over-pressurized. He further located a

similar over-pressurized bottle in the bathroom sink with water running over it; upon

later inspection, this bottle had ammonium nitrate pearls at its bottom. Ammonium

nitrate pearls, extracted from cold packs, are frequently used in the production of




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methamphetamine. Further, an air-purifying respirator was located in the bathroom of

the apartment; lighter fluid and drain cleaner was also found in the bathroom. Cold

packs and Sudafed were located in the bedroom.

      {¶6}    Lieutenant John Paul, a fire investigator with the Ashtabula City Fire

Department, investigated the cause of the fire. Lieutenant Paul concluded the fire had

originated in the kitchen. The lieutenant eliminated cooking or electricity as possible

causes. Officially, however, the cause of the fire was ruled “undetermined.”

      {¶7}    Detective William Felt, of the Ashtabula City Police Department, was

called to the scene of the fire and searched the premises. In his career, the detective

had been involved in remediating some 200 methamphetamine labs.                During the

search, Detective Felt observed a pseudoephedrine package, HEET gas-line antifreeze,

and a digital scale in the bathroom.    He further observed two suitcases containing

chemicals associated with the production of methamphetamine located in a bedroom.

      {¶8}    In the same bedroom, the detective found open cold packs; a bottle of

drain cleaner; a light bulb converted into a methamphetamine pipe; and lithium

batteries. In the master bedroom, the detective located a mailing envelope labeled with

appellant’s name and his aunt’s address. A receipt from Discount Drug Mart for the

purchase of a cold pack and three Zippo lighter-fluid entries was found in the envelope.

Detective Felt also searched appellant’s vehicle. In the car, he discovered Coleman

fuel cans.   According to the detective, the bottles found in the two sinks were akin to

those used in a “one-pot method” methamphetamine lab.

      {¶9}    Detective Felt interviewed appellant at the Ashtabula City Police

Department. Appellant claimed he did not remember where he was on December 6 or




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7; he asserted, however, he was at his aunt’s house on East 45th Street in Ashtabula,

Ohio on December 8. Appellant also indicated he was at his uncle’s house during the

same time period. When the detective asked him to explain the conflict, appellant

explained he was confused. Detective Felt later determined appellant was at neither

residence on December 8, 2012.

      {¶10} Detective Felt obtained video footage from Discount Drug Mart from the

date printed upon the receipt. The video shows appellant and his mother, Pamela

Payne, in the store. Pamela Payne is seen purchasing the items on the receipt and

appellant can be seen looking at cold packs.

      {¶11} Jennifer Acurio, a forensic scientist with the Ohio Bureau of Criminal

Identification and Investigation, tested the light bulb/smoking device from the crime

scene. She determined it contained a trace amount of methamphetamine.

      {¶12} Appellant was indicted on February 28, 2013, on one count of aggravated

arson, in violation of R.C. 2909.02, a felony of the first degree; one count of illegal

manufacture of drugs, in violation of R.C. 2925.04, a felony of the first degree; and one

count of illegal assembly or possession of chemicals for the manufacture of drugs, in

violation of R.C. 2925.041, a felony of the second degree. Appellant pleaded not guilty

to the charges.

      {¶13} After a trial by jury, appellant was found guilty on each count. The trial

court determined the three counts merged for purposes of sentencing and the state

elected to proceed to sentence on the aggravated arson count.            Appellant was

sentenced to a ten-year term of imprisonment.




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       {¶14} Appellant appealed his conviction and, in State v. Payne, 11th Dist.

Ashtabula No. 2014-A-0001, 2014-Ohio-4304 (“Payne I”), this court held appellant’s

conviction for aggravated arson was not supported by sufficient evidence. Id. at ¶25.

This court further held that, because the state was entitled to, but had not yet elected to

proceed to sentencing on one of the remaining counts, further review of appellant’s

conviction was not ripe for review. Id. at ¶26-27. This court proceeded to analyze

appellant’s assignment of error relating to his waiver of counsel because it was capable

of repetition in a later appeal. After considering his argument, this court determined that

the assigned error lacked merit. Id. at ¶42.

       {¶15} On July 7, 2015, the trial court vacated appellant’s conviction for

aggravated arson, pursuant to Payne I. The court merged the remaining counts and the

state elected to proceed to sentencing on the illegal-manufacture-of-drugs count.

Appellant was sentenced to an eight-year term of imprisonment. He now appeals that

judgment.

       {¶16} Appellant’s first assignment of error provides:

       {¶17} “The trial court erred to the prejudice of the defendant’s Rule 29 motion for

acquittal; furthermore, the jury’s verdict was against the manifest weight of the

evidence.”

       {¶18} In a criminal appeal, a verdict may be overturned if it is against the

manifest weight of the evidence or because there is insufficient evidence to support the

conviction. In the former, an appellate court acts as a “thirteenth juror” to determine

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

that the conviction must be overturned and a new trial ordered. State v. Thompkins, 78




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Ohio St.3d 380, 387 (1997). In the latter, the court must determine whether the

evidence submitted is legally sufficient to support all of the elements of the offense

charged. Id. at 386-387. The test is, viewing the evidence in a light most favorable to the

prosecution, could any rational jury have found the essential elements of the crime

proven beyond a reasonable doubt? Id. at 390 (Cook, J., concurring); State v. Jenks, 61

Ohio St.3d 259 (1991), paragraph two of the syllabus.

      {¶19} Appellant challenges the weight and sufficiency of the evidence upon

which the illegal-manufacture-of-drugs conviction was premised. To obtain a conviction

for illegal manufacture of drugs, the state was required to prove, beyond a reasonable

doubt, that appellant knowingly manufactured or otherwise engaged in any part of the

production of methamphetamine. See R.C. 2925.04(A).

      {¶20} Appellant asserts that the state failed to produce sufficient, credible

evidence that methamphetamine was being manufactured in the apartment, let alone

that appellant was engaged in any part of the manufacture of methamphetamine. We do

not agree.

      {¶21} At trial, Detective Felt testified he had disassembled approximately 200

methamphetamine labs.       He testified regarding the equipment usually used in the

manufacture of the drug. Specifically, he noted 20-ounce sport drink or soda bottles are

utilized as vessels to hold the ingredients for the one-pot method of manufacture. The

chemicals commonly used in this method are: pseudoephedrine; cold packs containing

ammonium nitrate; pickling salt; Zippo liter fluid; Coleman lantern fuel or HEET brand

gas-line antifreeze (used as a solvent); lithium metal, usually removed from lithium

batteries with a pipe cutter and pliers, to catalyze the chemical reaction; and drain




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cleaner (which contains the chemical sodium hydroxide that aids in the reaction).

Moreover, the detective testified coffee filters are used to separate the chemical sludge

from the final product.

       {¶22} The detective testified that the chemicals, when blended, produce an

exothermic reaction in the bottle, which produces high heat and pressure. Thus, in the

course of manufacturing the drug, the cap of the bottle must be gradually unscrewed to

relieve the pressure to avoid an explosion.

       {¶23} During Detective Felt’s search of the apartment, he observed the

following, most of which was located in the bedrooms of the apartment: an empty,

pseudoephedrine package; HEET gas-line antifreeze; two packages of open, cold-

compress bags that still contained ammonium nitrate pearls; two bottles of drain

cleaner; a butane lighter fluid can; a plastic bag containing Energizer lithium batteries; at

least two “scored” or “husked” lithium battery shells; two sets of pipe cutters and a pair

of pliers; coffee filters; several pre-measured plastic bags containing pickling salts; two,

over-pressurized 20-ounce bottles, one of which contained ammonium nitrate pearls; an

envelope, bearing appellant’s name that had a receipt in it from Discount Drug Mart for

the purchase of a cold pack and three Zippo lighter fluid containers; and a light bulb

converted into a methamphetamine pipe. And, in appellant’s vehicle, Felt discovered

Coleman lantern fuel cans, each with “some product” remaining in them.

       {¶24} Detective Felt observed the video footage from Discount Drug Mart from

the date printed on the receipt found in the envelope. The video depicted appellant and

his mother in the store; appellant’s mother is seen purchasing the items on the receipt,

while appellant is looking at cold packs.




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         {¶25} Chief Pristera echoed much of the detective’s testimony, noting, upon

arriving at the scene, he observed a 20-ounce bottle in the bathroom sink with water

running over it.    The bottle appeared over-pressurized.      A similar, over-pressurized

bottle was found in the kitchen sink. Pristera further observed an air purifying respirator

located in the bathroom as well as lighter fluid and drain cleaner. In the bedroom,

Pristera noticed cold packs and a package of pseudoephedrine.

         {¶26} Finally, Mr. Loveridge testified he regularly does repair work for appellant

who paid him with methamphetamine.            He further testified he would receive the

methamphetamine from appellant at Vernotta Jiminez’ apartment, where appellant was

seen “often.” On the day of the fire, Loveridge testified he was at Vernotta Jiminez’

apartment complex to fix appellant’s car in exchange for methamphetamine. After he

finished the work, he noticed smoke issuing from Jiminez’ apartment. He entered the

burning residence and observed appellant with Jiminez. The group subsequently left the

residence together

         {¶27} The foregoing facts provide direct and circumstantial evidence to support

the conclusion that methamphetamine had been manufactured in the apartment if not

on the day of the fire, at some point prior to the fire; moreover, it provides credible

circumstantial evidence that appellant was a party to or complicit in the manufacture of

methamphetamine in the apartment, whether on the date of the fire or at some point

prior.

         {¶28} Appellant maintains our previous opinion in Payne I undercuts these

conclusions. It does not.




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       {¶29} In Payne I, this court held appellant’s conviction for aggravated arson was

not supported by sufficient evidence. In so holding, we underscored that the state failed

to produce any evidence that (1) the fire was caused by methamphetamine production

or (2) appellant was manufacturing or complicit in the manufacture of methamphetamine

when the fire started.    These points do not negate the inference, drawn from the

evidence outlined in this opinion, that appellant had engaged in the manufacture of

methamphetamine or was complicit in the manufacture of methamphetamine in the

apartment at some point. To the contrary, in light of the chemicals, the equipment, and

the receipt, all found in the apartment, as well as the drug store video and Loverage’s

testimony, we conclude the manifest weight of the evidence supports the inference that

appellant had, at the very least, engaged in some aspect of the manufacture of

methamphetamine in Vernotta Jiminez’ apartment.           We therefore hold appellant’s

convictions are supported by sufficient evidence as well as the weight of the evidence.

       {¶30} Appellant’s first assignment of error is without merit.

       {¶31} Appellant’s second assignment of error provides:

       {¶32} “The trial court erred when it failed to address appellant’s concerns about

his appointed counsel’s performance and found that appellant had made an effective

waiver of counsel, in the middle of the trial when the jury was already impaneled and

sworn and had heard a substantial amount of evidence.”

       {¶33} In Payne I, appellant assigned the foregoing as error. Even though this

court reversed the matter due to insufficient evidence on the aggravated arson charge,

the panel nevertheless addressed appellant’s argument because it was capable of

repetition. In doing so, this court found appellant’s argument without merit, holding:




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      {¶34} Under the circumstances, the record shows the trial court ensured
            appellant knowingly, intelligently, and voluntarily elected to proceed
            pro se. Moreover, appellant’s vague objections to trial counsel’s
            strategy were insufficient to trigger any further inquiry by the judge.
            After reiterating his general dissatisfaction with counsel’s approach
            to his defense, appellant ultimately chose to go forward on his own.
            We find no error in the manner in which the court managed this
            issue. Id. at ¶42.

      {¶35} Because this court previously addressed and ruled on appellant’s

argument, his second assignment of error lacks merit.

      {¶36} For the reasons discussed above, the judgment of the Ashtabula County

Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, J.,

THOMAS R. WRIGHT, J.,

concur.




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