[Cite as State v. Wyatt, 2014-Ohio-3009.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

PREBLE COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellee, : CASE NO. CA2013-06-005 

 

 : O P I N I O N

 - vs - 7/7/2014 

 : 

CHARLES RANDALL WYATT, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS 

Case No. 12-CR-11093 

Martin P. Votel, Preble County Prosecuting Attorney, Eric E. Marit, Preble County 

Courthouse, 101 East Main Street, 1st Floor, Eaton, Ohio 45320, for plaintiff-appellee 

Brian A. Muenchenbach, 130 West Second Street, Suite 2103, Dayton, Ohio 45402-1505, for 

defendant-appellant 

 PIPER, J.

{¶ 1} Defendant-appellant, Charles Wyatt, appeals his convictions in the Preble 

County Court of Common Pleas for illegal manufacture of drugs, aggravated possession of 

drugs, endangering children, and having drug paraphernalia. 

{¶ 2} One of Wyatt's neighbors contacted police to report that strong chemical smells 

were coming from the direction of the property owned by Wyatt's father. Deputy Paul 
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Plaugher of the Preble County Sheriff's Office interviewed the neighbor, and learned that 

such odors had been coming from the Wyatt property for several months. The neighbor also 

explained that cars would come and go from the property at all times of the day and night, 

and stay only long enough for Wyatt to go out to the car and visit for a brief moment. Wyatt 

also littered the neighbor's property with empty water bottles, empty mineral spirits 

containers, and a propane tank with a retrofitted ball valve system that contained anhydrous 

ammonia. The neighbor also stated that Wyatt had installed an exhaust fan in the barn, and 

that when it was turned on, the chemical smell coming from the Wyatt property was much 

stronger. 

{¶ 3} Deputy Plaugher and his partner went to the neighbor's property, and from 

there could smell a strong odor of what Deputy Plaugher believed to be ether coming from 

the direction of the Wyatt property. Specifically, the smell was emanating from the barn area 

of the property where Wyatt lived in a trailer.1

 From his position on the neighbor's property, 

Deputy Plaugher was able to hear the noise of an exhaust fan coming from the barn area. 

While Deputy Plaugher was on the property, he received a dispatch that required him to 

leave the neighbor's property for a short period. During that period, the neighbor called 

Deputy Plaugher to inform him that men on the Wyatt property had started a fire near the 

barn. Deputy Plaugher later returned to the neighbor's property to continue his observations 

of the Wyatt property, including the fire near the barn. 

{¶ 4} Deputy Plaugher drafted an affidavit with the information he obtained from 

going to the neighbor's property, as well as his personal experience of smelling ether 

emanating from the Wyatt property, hearing an exhaust fan, and seeing the fire. Deputy 

Plaugher also averred what he had learned from the neighbor regarding cars coming and 

 

1. The facts indicate that Wyatt's parents lived in a house on the property while Wyatt, his girlfriend, and her 

three children lived in a trailer located on the property immediately in front of the barn area. 
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going from the Wyatt property at all hours. Deputy Plaugher also averred that Wyatt was 

known to have a prior conviction for aggravated possession of drugs. From these facts, 

Deputy Plaugher averred his belief that a methamphetamine "cook" was occurring on the 

Wyatt property. 

{¶ 5} Deputy Plaugher was granted the search warrant, and such was executed with 

the help of other officers from the Preble County Sheriff's Office. During the search, officers 

located several individuals on the property, including Tanessa Miller (Wyatt's girlfriend), 

Miller's three children, and John Dougherty. Wyatt was not found on the property at the time 

the warrant was executed. Upon execution of the warrant, officers found the 

methamphetamine "lab" in the barn, just as Deputy Plaugher suspected. 

{¶ 6} The barn contained evidence that methamphetamine had been produced in the 

24-48 hours before the warrant was executed. The barn also contained large quantities of 

finished methamphetamine, and Wyatt's fingerprint was found on a bowl in which the finished 

product was stored. Officers also seized other evidence of methamphetamine 

manufacturing, including lithium batteries, retrofitted propane tanks, and other chemicals 

necessary to the manufacturing process. 

{¶ 7} Wyatt was indicted for illegal manufacture of drugs, illegal assembly or 

possession of chemicals for the illegal manufacture of drugs within the vicinity of a minor, 

aggravated possession of drugs, endangering children, and having drug paraphernalia. A 

warrant was issued for Wyatt's arrest. 

{¶ 8} A few days after the arrest warrant was issued, Deputy Plaugher spoke to 

Wyatt on a phone after Wyatt's father made contact with his son in Deputy Plugher's 

presence. During the phone conversation, Wyatt claimed that he had been in Indianapolis 

before, during, and after the time that the warrant was executed, and that he had nothing to 

do with the manufacture of methamphetamine. 
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{¶ 9} Approximately three months later, Wyatt was arrested, arraigned, and 

appointed counsel. Three days after his arraignment, and while incarcerated at the Preble 

County Jail, Wyatt asked to speak to Deputy Plaugher. Deputy Plaugher read Wyatt his 

Miranda rights before speaking with him, and Wyatt executed a waiver of those rights. Wyatt 

then spoke to Deputy Plaugher outside the company of his appointed counsel. During their 

conversation, Wyatt admitted that John Doughtery had "cooked" methamphetamine for him, 

and that he was on his father's property the night before the search warrant was executed 

and not in Indiana as he had previously told Deputy Plaugher. 

{¶ 10} Wyatt later moved for suppression of his statements, as well as the evidence 

seized from the barn and the Wyatt property during the execution of the search warrant. On 

the day of the suppression hearing, the state informed Wyatt that if he chose to move 

forward with his motion, any plea offers would be revoked. Wyatt moved forward with the 

motion to suppress hearing anyway, and the state in fact revoked a plea offer it had 

previously made. After the hearing, the trial court denied Wyatt's motion to suppress, and 

the matter proceeded to a two-day jury trial. 

{¶ 11} The jury found Wyatt guilty of each count. The trial court merged some of the 

counts, and ordered an aggregate prison sentence of six years. Wyatt now appeals his 

convictions and sentence, raising the following assignments of error: 

{¶ 12} Assignment of Error No. 1: 

{¶ 13} THE TRIAL COURT ERRED WHEN IT DENIED MR. WYATT'S MOTION TO 

SUPPRESS EVIDENCE OBTAINED AS A RESULT OF AN UNLAWFUL SEARCH AND 

FAILED TO SUPRESS [SIC] STATEMENTS MADE IN VIOLATION OF APPELLANT'S 

FIFTH AMENDMENT RIGHTS. 

{¶ 14} Wyatt argues in his first assignment of error that his motion to suppress should 

have been granted. 
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{¶ 15} Appellate review of a ruling on a motion to suppress presents a mixed question 

of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353. 

Acting as the trier of fact, the trial court is in the best position to resolve factual questions and 

evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to 

suppress, a reviewing court is bound to accept the trial court's findings of fact if they are 

supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No. CA2005-03-

074, 2005-Ohio-6038. "An appellate court, however, independently reviews the trial court's 

legal conclusions based on those facts and determines, without deference to the trial court's 

decision, whether as a matter of law, the facts satisfy the appropriate legal standard." 

Cochran at ¶ 12. 

{¶ 16} Wyatt first moved to suppress evidence seized as a result of the search warrant 

obtained by Deputy Plaugher and executed by the Preble County police. 

{¶ 17} According to Crim.R. 41(C), 

(1) A warrant shall issue on either an affidavit or affidavits sworn 

to before a judge of a court of record or an affidavit or affidavits 

communicated to the judge* * *. The affidavit shall name or 

describe the person to be searched or particularly describe the 

place to be searched, name or describe the property to be 

searched for and seized, state substantially the offense in 

relation thereto, and state the factual basis for the affiant's belief 

that such property is there located. * * * 

(2) If the judge is satisfied that probable cause for the search 

exists, the judge shall issue a warrant identifying the property 

and naming or describing the person or place to be searched. 

{¶ 18} When determining the sufficiency of probable cause in an affidavit submitted in 

support of a search warrant, "the task of the issuing magistrate is simply to make a practical, 

common-sense decision whether, given all the circumstances set forth in the affidavit before 

him * * * there is a fair probability that contraband or evidence of a crime will be found in a 

particular place." State v. George, 45 Ohio St.3d 325 (1989), paragraph one of the syllabus. 
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{¶ 19} An appellate court should not substitute its judgment for that of the issuing court 

as to whether the affidavit contains sufficient probable cause upon which that court would 

issue the search warrant. State v. Akers, 12th Dist. Butler No. CA2007-07-163, 2008-Ohio4164. "In conducting any after-the-fact scrutiny of an affidavit submitted in support of a 

search warrant, trial and appellate courts should accord great deference to the magistrate's 

determination of probable cause, and doubtful or marginal cases in this area should be 

resolved in favor of upholding the warrant." George, paragraph two of the syllabus. 

{¶ 20} During the motion to suppress hearing, Deputy Plaugher testified that he was 

informed of possible drug-related activity on the Wyatt property based upon a call made by 

one of Wyatt's neighbors. Deputy Plaugher testified that when he responded to the 

neighbor's home, he was close to the Wyatt property and could smell a "strong chemical 

smell, which smelled like ether" emanating from the barn area on the Wyatt property. Deputy 

Plaugher also testified that while he and his partner were on the property, they saw men 

leaving the barn on Wyatt's property, and that one man directed the other to lock the barn 

"tight." Deputy Plaugher also heard an exhaust fan running on the Wyatt property, and 

testified that in his experience, the smells coming from the Wyatt property were indicative of 

methamphetamine manufacturing. 

{¶ 21} Deputy Plaugher took all of the information he learned from the neighbor, as 

well as his own personal observations, and submitted an affidavit explaining the reasons 

behind his belief that Wyatt was manufacturing methamphetamine in the barn. Plaugher 

specifically described the different places on the property where suspected drug activity was 

occurring, including the house, the barn, and Wyatt's trailer near the barn. 

{¶ 22} Wyatt argues that Deputy Plaugher's affidavit was insufficient to establish 

probable cause to support the search warrant because no ether was ever discovered during 

the search, and therefore, Deputy Plaugher's statement that he smelled ether while near the 
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Wyatt property was "only included in the affidavit in an attempt to mislead the Judge into 

construing the information to establish probable cause." 

{¶ 23} The record indicates that no ether was cataloged on the inventory of seized 

evidence as prepared by police after the search. That does not mean, however, that ether 

was never on the property or that Deputy Plaugher did not smell ether, or something similar, 

the night he investigated from the neighbor's property. The state suggests several reasons 

that ether was not inventoried after the seizure of evidence. As previously stated, the barn 

contained a large quantity of finished product, so that it is possible that the ether was used in 

whatever manufacturing occurred while Deputy Plaugher was investigating. The record also 

contains evidence that a hazardous materials team was on the scene after the warrant was 

executed and destroyed chemicals that were not taken into evidence. Or, it is possible that 

the men who started the fire on the property did so to dispose of the discarded containers for 

ingredients used during the manufacturing process. We agree with the state that there are 

several possibilities regarding what could have happened to the ether, if such did exist on the 

property. However, such a determination is not necessary, as there is no indication that 

Deputy Plaugher fabricated his observation of smelling chemicals coming from the Wyatt 

property to mislead the judge. 

{¶ 24} The fact that no ether was found does not diminish the fact that other chemicals 

were found on the property that could account for the strong chemical smell, or that the 

neighbor who first called the police to report the suspicious activity complained of strong 

chemical smells coming from the Wyatt property without making any specific reference to 

ether. Moreover, the affidavit contained information other than specific mention of ether, 

such as cars coming and going from the property and other suspicious drug-related activity. 

{¶ 25} After reviewing the record, we find that Deputy Plaugher's affidavit named the 

place to be searched, described the evidence to be searched for and seized, and stated 
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substantially the factual basis for his belief that evidence of methamphetamine manufacturing 

was located there. Given all the circumstances set forth in Deputy Plaugher's affidavit, there 

was a fair probability that contraband or evidence of a crime would be found on the Wyatt 

property. We also have reviewed the search warrant and find that the judge issued a proper 

warrant that identified the property, described the place to be searched, and described the 

evidence to be seized. As such, the search warrant and execution thereof was valid and the 

trial court properly overruled Wyatt's challenge to the warrant and evidence seized therefrom. 

{¶ 26} Wyatt next argues that the trial court should have suppressed the statements 

he made to Deputy Plaugher once he had been arraigned on the charges and appointed 

counsel. 

{¶ 27} "The Sixth Amendment right to counsel is triggered 'at or after the time that 

judicial proceedings have been initiated * * * whether by way of formal charge, preliminary 

hearing, indictment, information, or arraignment.'" Fellers v. United States, 540 U.S. 519, 

523, 124 S.Ct. 1019 (2004), quoting Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232 

(1977). The United States Supreme Court has held that "an accused is denied 'the basic 

protections' of the Sixth Amendment 'when there [is] used against him at his trial evidence of 

his own incriminating words, which * * * agents * * * deliberately elicited from him after he had 

been indicted and in the absence of his counsel.'" Fellers at 523, quoting Massiah v. United 

States, 377 U.S. 201, 206, 84 S.Ct. 1199 (1964). However, "the Sixth Amendment right to 

counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, 

knowing, and intelligent." Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 2085 

(2009). A defendant may waive his Sixth Amendment right whether or not he is already 

represented by counsel, and the decision to waive "need not itself be counseled." Id. When 

a defendant is read his Miranda rights, which expressly include the right to have counsel 

present during interrogation, and agrees to waive those rights, a valid waiver occurs. Id. 
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{¶ 28} "Nothing in the Sixth Amendment prevents a suspect charged with a crime and 

represented by counsel from voluntarily choosing, on his own, to speak with police in the 

absence of an attorney." Michigan v. Harvey, 494 U.S. 344, 352, 110 S.Ct. 1176 (1990). 

"Although a defendant may sometimes later regret his decision to speak with police, the Sixth 

Amendment does not disable a criminal defendant from exercising his free will." Id. at 353. 

{¶ 29} The record is clear that Wyatt was arraigned and appointed counsel so that his 

Sixth Amendment rights were triggered. However, the record is equally clear that Wyatt 

expressly initiated contact with Deputy Plaugher and asked to speak to him outside the 

presence of his attorney. The record contains an "inmate request form" written by Wyatt 

while he was incarcerated at the Preble County Jail. Within the request form, Wyatt stated, "I 

need to speak with Officer [sic] Plaugher or the head of the Meth task force team. Thank 

You." This written request was issued solely at Wyatt's request, and based upon his free will 

and desire to speak to Deputy Plaugher. 

{¶ 30} The record contains evidence that when Deputy Plaugher spoke to Wyatt at the 

jail, he advised Wyatt of his Miranda rights and Wyatt expressly waived such by signing a 

Miranda waiver form. Within the form, the Miranda rights are expressly stated, and Wyatt 

affirmed that he understood the rights, was able to read, and that he understood what he 

read about the rights. The next section of the waiver states, "understanding what you have 

read and what has been read to you about your rights, will you now make a statement and 

answer questions, without your lawyer being present, concerning" the manufacturing of 

methamphetamine at the Wyatt property? (Emphasis added.) Wyatt answered "yes" to the 

question, and proceeded to give his statement to Deputy Plaugher. 

{¶ 31} Unlike an instance where a suspect is afforded his Sixth Amendment rights and 

such rights are then violated when police initiate interrogation outside the presence of the 

suspect's attorney, Deputy Plaugher never initiated contact with Wyatt once Wyatt was 
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appointed counsel. Wyatt himself initiated contact with Deputy Plaugher, and further waived 

his right to remain silent by signing a waiver of his rights after such were fully explained to 

him. 

{¶ 32} Notably, the waiver form Wyatt signed made specific reference to the 

discussion occurring without Wyatt's lawyer being present, and Wyatt agreed to talk to 

Deputy Plaugher without his counsel present. As such, Wyatt waived his rights, and no 

violation of the Fifth or Sixth Amendments occurred. See State v. Geldrich, 12th Dist. Butler 

No. CA2006-10-267, 2008-Ohio-2622 (affirming denial of motion to suppress where appellant 

made statement to officers of his own accord and officers did not deliberately elicit 

appellant's statement after his Sixth Amendment rights were triggered). 

{¶ 33} Wyatt places great emphasis on the fact that at the time Deputy Plaugher 

advised him of his rights, Deputy Plaugher was unaware that Wyatt had been appointed 

counsel. However, such a fact is irrelevant because Deputy Plaugher did not initiate the 

contact and did not take any action to interrogate Wyatt once Wyatt was arraigned. It was 

within Wyatt's free will, and own decision-making process, to request an audience with 

Deputy Plaugher. Despite what Deputy Plaugher knew or did not know, Wyatt himself knew 

that he had been appointed counsel and had the right to have counsel present during his 

interaction with Deputy Plaugher. Wyatt, however, elected to waive his rights, and Deputy 

Plughter not knowing that Wyatt had previously been appointed counsel does not vitiate that 

valid waiver. 

{¶ 34} Having found that the search warrant was properly issued and executed, and 

that Wyatt's rights were not violated when he gave his statement to Deputy Plaugher, Wyatt's 

first assignment of error is overruled. 

{¶ 35} Assignment of Error No. 2: 

{¶ 36} THE TRIALL [SIC] COURT ERRED WHEN IT OVERRULED APPELLANT'S 
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CRIM.R. 29 MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE EVIDENCE WAS 

INSUFFICIENT TO SUPPORT A CONVICTION AND/OR APPELLANT'S CONVICTION [SIC] 

IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 

{¶ 37} Wyatt argues in his second assignment of error that his convictions were 

against the manifest weight of the evidence and were not supported by sufficient evidence, 

and that his Crim.R. 29 motion should therefore have been granted. 

{¶ 38} This court reviews a trial court's decision on a Crim.R. 29(C) motion for acquittal 

using the same standard as that is used to review a sufficiency of the evidence claim. State 

v. Grindstaff, 12th Dist. Clermont No. CA2013-09-074, 2014-Ohio-2581. When reviewing the 

sufficiency of the evidence underlying a criminal conviction, an appellate court examines the 

evidence in order to determine whether such evidence, if believed, would support a 

conviction. State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298. "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, superseded on other grounds. 

{¶ 39} A manifest weight challenge examines the inclination of the greater amount of 

credible evidence offered at trial to support one side of the issue rather than the other. 

Wilson, 2007-Ohio-2298. 

In determining whether a conviction is against the manifest 

weight of the evidence, the court, reviewing the entire record, 

weighs the evidence and all reasonable inferences, considers 

the credibility of the witnesses and determines 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. Cummings, 12th Dist. Butler No. CA2006-09-224, 2007-Ohio-4970, ¶ 12. 

{¶ 40} While appellate review includes the responsibility to consider the credibility of 
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witnesses and the weight given to the evidence, "these issues are primarily matters for the 

trier of fact to decide since the trier of fact is in the best position to judge the credibility of the 

witnesses and the weight to be given the evidence." State v. Walker, 12th Dist. Butler No. 

CA2006-04-085, 2007-Ohio-911, ¶ 26. Therefore, an appellate court will overturn a 

conviction due to the manifest weight of the evidence only in extraordinary circumstances to 

correct a manifest miscarriage of justice, and only when the evidence presented at trial 

weighs heavily in favor of acquittal. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). 

{¶ 41} Wyatt was convicted of illegal manufacture of drugs in violation of R.C. 

2925.04(A), which provides that "no person shall knowingly * * * manufacture or otherwise 

engage in any part of the production of a controlled substance." Wyatt was also convicted of 

illegal assembly or possession of chemicals for the manufacture of drugs in violation of R.C. 

2925.041(A), which provides that "no person shall knowingly assemble or possess 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 * * *." Wyatt was also convicted of 

possession of drugs in violation of R.C. 2925.11(A), which provides that, "no person shall 

knowingly obtain, possess, or use a controlled substance or a controlled substance analog." 

Wyatt was also convicted of endangering children in violation of R.C. 2919.22(B)(6), which 

criminalizes permitting children to be on the same property, "and within one hundred feet of" 

the manufacturing or illegal assembly of drugs "when the person knows that the act is 

occurring * * *." Lastly, Wyatt was convicted of having drug paraphernalia in violation of R.C. 

2925.14(C)(1), which provides that "no person shall knowingly use, or possess with purpose 

to use, drug paraphernalia." 

{¶ 42} As all of these crimes essentially relate to the state's charge that Wyatt 

manufactured methamphetamine, Wyatt argues that the state failed to prove that he was 

responsible for the methamphetamine "cook" on the property, and that he did not knowingly 
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possess the chemicals used in the illegal assembly of methamphetamine. 

{¶ 43} According to R.C. 2901.22(B), "a person acts knowingly, regardless of his 

purpose, when he is aware that his conduct will probably cause a certain result or will 

probably be of a certain nature. A person has knowledge of circumstances when he is aware 

that such circumstances probably exist." 

{¶ 44} Possession means "having control over a thing or substance, but 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." R.C. 2925.01(K). Possession 

may be actual or constructive. State v. Bowling, 12th Dist. Butler No. CA2013-08-159, 2014-

Ohio-1690. "Constructive possession exists when one is conscious of the presence of the 

object and able to exercise dominion and control over it, even if it is not within one's 

immediate physical possession." Id. at ¶ 35. Dominion and control can be proven by 

circumstantial evidence alone. State v. Gaefe, 12th Dist. Clinton No. CA2001-11-043, 2002-

Ohio-4995, ¶ 10. 

{¶ 45} Despite Wyatt's arguments to the contrary, the state presented evidence during 

the trial that, when viewed in a light most favorable to the prosecution, proves that he 

committed each of the crimes for which he was convicted. 

{¶ 46} The state first called Wyatt's neighbor, who had reported the suspicious 

behavior at the Wyatt property to police. The neighbor testified that she had a clear view of 

the Wyatt property and was aware of who lived on the property, including that Wyatt lived in 

the trailer by the barn. The neighbor testified that Wyatt's girlfriend, Tanessa Miller, and 

Miller's three children also lived in the trailer with Wyatt. The neighbor testified that there was 

suspicious behavior on the Wyatt property, including cars coming and going at all hours of 

the day and night, seven days a week. The cars would drive the length of the property until 

they reached the barn, and stay only long enough for Wyatt to go to the car, talk for a minute, 
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and then leave. The neighbor testified that the same cars would make this trip time and 

again. 

{¶ 47} The neighbor also testified that Wyatt approached her and told her that he had 

cut a path on her back property near the barn area. The neighbor stated that when she 

surveyed the path, Wyatt had littered the area with empty water bottles, a five gallon bucket, 

mineral spirits cans, and a propane tank that was retrofitted with ball valves. When the 

neighbor and her husband opened the tank, anhydrous ammonia came out of the tank. The 

neighbor testified that she confronted Wyatt with the tank in front of his parents, and that he 

denied that it was his. However, Wyatt later asked the neighbor to return the tank to him 

because he had "a lot of money invested in that tank." 

{¶ 48} The neighbor testified that she could smell strong odors of chemicals coming 

from the property, and that Wyatt had installed an exhaust fan in the barn that made the 

smells coming from the barn even stronger. The neighbor testified that she saw Wyatt take 

items into the barn mere moments before the exhaust fan would turn on and the chemical 

smell would emanate from the barn. 

{¶ 49} The state next called Deputy Plaugher, who testified about being called out to 

the neighbor's property to investigate possible drug-related crimes. Deputy Plaugher testified 

that when he went to the back of the neighbor's property near the Wyatt property, he too 

could smell a strong chemical odor. Deputy Plaugher and his partner stayed in the area of 

the neighbor's property where they could see the barn, and Deputy Plaugher testified that two 

men exited the barn and one told the other to lock the barn "tight." Although Deputy 

Plaugher and his partner tried to follow the two men, they were unable to do so, and were 

then dispatched to respond to an unrelated alarm. 

{¶ 50} Deputy Plaugher testified that after he left the neighbor's property to respond to 

the alarm, he was again contacted within a short time by the neighbor. Deputy Plaugher 
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testified that he and his partner later returned to the neighbor's property to continue the 

investigation, and detailed the circumstances surrounding procuring the search warrant and 

executing it. 

{¶ 51} Deputy Plaugher testified that when he and the other Preble County police 

officers executed the warrant, they apprehended John Doughtery, and also found Tenessa 

Miller and her three children coming from the trailer next to the barn. Deputy Plaugher 

testified that the trailer is well within 100 feet of the barn; he stated that you cannot open the 

door to the barn without hitting the trailer. During the search, police seized pseudoephedrine 

pills, methamphetamine, marijuana and drug paraphernalia, as well as a glass bowl that 

contained methamphetamine and Wyatt's fingerprint. 

{¶ 52} During Deputy Plaugher's testimony, the state played a tape of the recorded 

conversation between Wyatt and Deputy Plaugher after Wyatt asked to speak to the deputy. 

Within the conversation, Wyatt admitted that he was in the barn the day before the arrest 

warrant was executed, and also that he permitted others to manufacture methamphetamine 

in the barn. Wyatt also told Deputy Plaugher that he knew "what was going on over there" in 

reference to methamphetamine manufacturing in the barn. 

{¶ 53} The state also called Captain Dean Miller of the Preble County Sherriff's Office. 

 Captain Miller testified that he had been trained in investigating and processing clandestine 

methamphetamine labs. Captain Miller testified to the process of manufacturing 

methamphetamine and the materials required for the process, including lithium batteries, 

pseudoephedrine pills, mineral spirits, and anhydrous ammonia. 

{¶ 54} Captain Miller testified that he took part in execution of the search warrant on 

the Wyatt property, and that when he first entered the barn, he had to leave immediately 

because of the noxious chemical odors. Once Captain Miller put on protective gear, he 

entered the barn and located materials necessary for the manufacturing of 
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methamphetamine, including pseudoephedrine "sludge," batteries, and chemicals.2

 

{¶ 55} The state also presented testimony from Agent Dwight Aspacher, a 14-year 

veteran of the Ohio Bureau of Criminal Identification and Investigation. Agent Aspacher 

specializes in investigating clandestine drug laboratories, and has investigated over a 

thousand such laboratories. Agent Aspacher testified that he investigated the barn on the 

Wyatt property and during the investigation, he located and identified materials used in the 

manufacturing of methamphetamine. Agent Aspacher also testified that he found pill 

"sludge," as well as finished methamphetamine in multiple containers. Agent Aspacher 

testified that the barn was filled with various containers and implements, such as coffee 

grinders to grind pseudoephedrine pills, used in the manufacturing of methamphetamine, and 

that the containers were caked with methamphetamine residue. 

{¶ 56} Agent Aspacher testified that he also found a propane cylinder that contained 

anhydrous ammonia, which was specially adapted with valves to make it easier to load the 

cylinder with ammonia. When asked his assessment of whether the barn contained a 

clandestine methamphetamine lab, Agent Aspacher said "yes," and based his assessment 

on the presence of pill sludge, chemical waste, crystallization and methamphetamine residue 

in the containers, a cooking tin, chemicals, lithium batteries, mineral spirits, and the 

ventilation system. 

{¶ 57} Based on the testimony and evidence, the state proved that Wyatt was 

conscious of the presence of the methamphetamine laboratory in the barn, as well as all of 

the tools, materials, and ingredients used in the manufacturing process. The testimony of 

Wyatt's neighbor demonstrated that Wyatt himself carried items into the barn, met with the 

 

2. Captain Miller testified that those who manufacture methamphetamine crush pseudoephedrine tablets and 

then pour chemicals over the crushed material to extract the components necessary for methamphetamine 

production. Once the liquid is drained off, the leftover materials are referred to as "sludge" and used a second 

time. 
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"customers" who came to the property to purchase drugs, and put money and work into 

creating the necessary tools to manufacture methamphetamine, such as the retrofitted 

propane tank that Wyatt wanted to retrieve from the neighbor. 

{¶ 58} Other evidence established that Wyatt exercised dominion and control over the 

methamphetamine and related materials. Wyatt's fingerprint was found on a container in 

which finished methamphetamine was found during the search, and he freely admitted to 

permitting others to manufacture methamphetamine in the barn. Wyatt himself admitted that 

he was in the barn on the day before the warrant was executed, and the evidence 

established that methamphetamine had been manufactured in the barn 24-48 hours prior to 

the execution of the search warrant. 

{¶ 59} While Wyatt argues that his convictions are against the manifest weight of the 

evidence and not supported by sufficient evidence, we disagree. The jury heard all of the 

testimony, considered the evidence, and found the state's theory of the case and its 

witnesses credible. We will not disturb such a finding on appeal. Nor do we find that the jury 

clearly lost its way or created a manifest miscarriage of justice that requires reversal. Having 

found that Wyatt's convictions were supported by sufficient evidence and were not rendered 

against the manifest weight of the evidence, we overruled Wyatt's second assignment of 

error. 

{¶ 60} Assignment of Error No. 3: 

{¶ 61} MR. WYATT WAS DEPRIVED OF HIS DUE PROCESS RIGHTS WHEN 

FORCED TO ACCEPT OR REJECT A PLEA OFFER CONTINGENT UPON WHETHER MR. 

WYATT MOVED FORWARD WITH A SUPPRESSION HEARING. 

{¶ 62} Wyatt argues in his final assignment of error that he was deprived of his due 

process rights when the state revoked its plea offer once he moved forward with the motion 

to suppress hearing. 
Preble CA2013-06-005

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{¶ 63} Despite Wyatt's argument to the contrary, a criminal defendant does not have a 

constitutional right to a plea bargain. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837 

(1977). Instead, the prosecutor acts within the state's discretion in proposing plea 

agreements to defendants. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663 (1978). As 

such, "the state is not required to offer a defendant a plea bargain and is permitted to 

withdraw a plea offer at any time." State v. Hart, 8th Dist. Cuyahoga No. 84531, 2005-Ohio107, ¶ 10, citing Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543 (1984). 

{¶ 64} The record indicates that the state offered Wyatt a plea agreement, which 

would have dismissed two of the counts, reduced the degree of one count, and limited 

Wyatt's prison sentence to three years. Before the motion to suppress hearing began, the 

state clearly indicated that if Wyatt moved forward with his motion to suppress, the plea offer 

would be revoked and the matter would proceed to a jury trial. The trial court summarized 

the agreement before the hearing began, explained the benefits of such agreement to Wyatt, 

and confirmed no less than four times that Wyatt wanted to reject the offer and move 

forward. 

{¶ 65} The fact that Wyatt chose to reject the state's offer does not, however, render 

his due process rights violated. Wyatt was clearly aware of the consequences of rejecting 

the plea and having his case decided by a jury. Wyatt chose to disregard such 

consequences in the hope of being acquitted by the jury, and the state was well within its 

authority to withdraw the plea offer. As such, we overrule Wyatt's final assignment of error. 

{¶ 66} Judgment affirmed. 

 

RINGLAND, P.J., and S. POWELL, J., concur.