[Cite as State v. Kirk , 2012-Ohio-5655.]

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

STATE OF OHIO Appellee

v. CARL J. KIRK Appellant C.A. No. 26358

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 11 06 1490 (B)

DECISION AND JOURNAL ENTRY Dated: December 5, 2012

DICKINSON, Judge.

INTRODUCTION {¶1} Officer Jeffrey Edsall stopped a car that was registered to someone with an active warrant. He arrested the driver, Carl Kirk, because Mr. Kirk’s license was suspended. Upon searching the car, he found a backpack that contained two bottles in which methamphetamine was cooking. He also found a suitcase in the trunk that contained almost everything needed to make methamphetamine. The Grand Jury indicted Mr. Kirk for illegal manufacture of drugs, illegal assembly or possession of chemicals for the manufacture of drugs, possessing criminal tools, illegal use or possession of drug paraph ernalia, carrying concealed weapons, improperly handling firearms in a motor vehicle, possession of marijuana, and driving under suspension. A jury found him guilty of illegal manufacture of drugs, illega l use or possession of drug paraphernalia, and driving under suspension, a nd the court found him guilty of possession of marijuana. The court sentenced him to three years imprisonment. Mr. Kirk has appealed,2

arguing that the court incorrectly gave a compli city instruction, that it incorrectly denied his motion for judgment of acquittal, and that his convictions are agai nst the manifest weight of the evidence. We affirm because the court properly instructed the jury, his convictions are supported by sufficient evidence, and his convictions are no t against the manifest weight of the evidence.

FACTS {¶2} Officer Edsall testified that he was on patrol running license plates when he came

across a car whose owner had an active warrant. When he stopped the car, Mr. Kirk was in the driver’s seat, Mr. Kirk’s brother Rickey was in the front passenger seat, and another man was in the back seat. While looking in the car, Officer Edsall saw liquid bladders in a bowl in the center console that he recognized as a byproduct of methamphetamine producti on. He arrested Mr. Kirk for driving without a valid license and ar rested Mr. Kirk’s brother because there was a

warrant for his arrest. He detained the ot her passenger, but later released him. {¶3} According to Officer Edsall, when he searched Mr. Kirk, he found a marijuana pipe. When he searched the car, he found a back pack on the front passenger side that contained two two-liter bottles. Methamphetamine was cooking inside the bottles. In the front passenger area he also found a glass methamphetamine pi pe and a gun. Inside the trunk, he found a suitcase that had “[a]lmost every component to make meth[.]” It c ontained “muriatic acid, Coleman fuel, pill wrappers, coffee filters, tubing, lithium strips, pliers, [and] aluminum foil.” It

also contained a traffic ticket th at had been issued to Rickey Kirk. When questioned, Mr. Kirk told an officer that he had bought fish tubing for his brother earlier in the day, but claimed that he

did not know what it was for. He also claime d that he did not know that methamphetamine was cooking inside his brother’s backpack or what was inside the suitcase.3

COMPLICITY INSTRUCTION {¶4} Mr. Kirk’s first assignment of error is that the trial court incorrectly instructed the jury on aiding and abetting because there was in sufficient evidence to support it. Under Section 2923.03(A)(2) of the Ohio Revised Code, “[n]o person, acting with the kind of culpability required for the commission of an offense, shall . . . [a]id or abet another in committing the offense[.]” A complicity instruction is proper if “the evidence adduced at trial could reasonably be found to have proven the defendant guilty as an aider and abettor[.]” State v. Perryman , 49 Ohio St. 2d 14, paragraph five of the syllabus (1976), overruled on other grounds by Perryman v. Ohio , 438 U.S. 911 (1978). “To support a conviction fo r complicity by aiding and abetting . . . , the evidence must show that the defendant sup ported, assisted, encourag ed, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal. Such intent may be inferred from the circumstances surrounding

the crime.” State v. Johnson , 93 Ohio St. 3d 240, syllabus (2001). {¶5} Mr. Kirk has argued that the backpack and suitcase in the car belonged to his

brother and that there was no evidence that he knew what they contained. He has argued that he was only giving his brother a ride at the time of the stop and that his mere association with his brother is insufficient to constitute aiding and abetting. {¶6} Officer David Crockett testified that he is a member of a clandestine lab enforcement team and that he assisted Officer Edsall after learning that the bottles contained methamphetamine. He testified that, in the center console of the car, there was a bowl that contained the bladders of instant-cold compresses. He explained that one of the ingredients for methamphetamine, ammonium nitrate, is f ound inside the compresses. Methamphetamine manufacturers cut them open to retrieve the ammoni um nitrate and discard th e bladders. He also4

explained that, if a two-liter plas tic bottle is being used to cook methamphetamine, it has to be “burped” occasionally to relie ve pressure from the gases ge nerated during the process. According to Officer Crockett, if the lid of the bottle is not opened to let the gasses out, the bottle could explode. Officer Crocket further explai ned that, once the cooking process is over, methamphetamine manufacturers convert the methamphetamine oil that it produces into a salt by exposing it to a gas that is delivered through fish tubing. The officer also testified that, when he interviewed Mr. Kirk, Mr. Kirk told him that he had used marijuana and methamphetamine before getting into the car with his brother and the other man. {¶7} The State presented evidence th at Mr. Kirk bought fish tubing for his brother, that he drove his brother around that same day while the brother was cooking methamphetamine, that the cooking process was going on in the front seat of the car with Mr. Kirk, that bladders from the instant-cold compresses were in the center console next to Mr. Kirk, and that the fish tubing

was in a suitcase in the trunk of the car. Viewin g this evidence in a light most favorable to the State, we conclude that it r easonably supports a finding that Mr. Kirk knowingly “supported, assisted, encouraged, co operated with, advised, or incited” his brothe r in the production of methamphetamine. State v. Johnson , 93 Ohio St. 3d 240, syllabus (2001); R.C. 2925.04(A) (providing that “[n]o person shall . . . knowingly manufacture or otherwise engage in any part of the production of a controlled substance.”). The tr ial court, therefore, correctly instructed the jury on aiding and abetting. Mr. Kirk’s first assignment of error is overruled.

MANUFACTURE OF METHAMPHETAMINE {¶8} Mr. Kirk’s second assignment of error is that the trial court incorrectly denied his motion for judgment of acquittal. His third assignment of error is that the jury’s verdict was against the manifest weight of the evidence. Although the jury and court found him guilty of5

illegal manufacture of drugs, illegal use or po ssession of drug paraph ernalia, driving under suspension, and possession of marijuana, Mr. Ki rk has limited his argume nts to his conviction for illegal manufacture of drugs. {¶9} Under Rule 29(A) of the Ohio Rules of Criminal Procedure, a defendant is entitled to a judgment of acquittal on a charge against him “if the evidence is insufficient to

sustain a conviction . . . .” Whether a conviction is supported by sufficient evidence is a question

of law that this Court reviews de novo. State v. Thompkins , 78 Ohio St. 3d 380, 386 (1997);

State v. West , 9th Dist. No. 04CA008554, 2005-Ohio-990, at ¶ 33. We must determine whether, viewing the evidence in a light most favorabl e to the prosecution, it could have convinced the average finder of fact of Mr. Kirk’s guilt beyond a reasonable doubt. State v. Jenks , 61 Ohio St. 3d 259, paragraph two of the syllabus (1991). If a defendant argues that his convictions are against the manifest weight of the evidence, this 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 ju stice that the conviction[s] must be reversed and a new trial

ordered.” State v. Otten , 33 Ohio App. 3d 339, 340 (1986). {¶10} Mr. Kirk has argued that the jury’s fi nding that he was not guilty of illegal assembly or possession of chemicals for the manufacture of drugs or possessing criminal tools

demonstrates that there was no evidence that he knew what his brother had brought into the car. In criminal cases, however, a jury’s verdict does not have to be consistent. State v. Conway , 108 Ohio St. 3d 214, 2006-Ohio-791, ¶ 27. Viewing the evidence in a light most favorable to the State, a trier of fact could reasonably infer that Mr. Kirk purchased the fish tubing for his brother

so that his brother could make methamphetamine and that he dr ove his brother around as it was6

cooking so that his brother could release the nox ious gases from the bottles in a less conspicuous way. Accordingly, we conclude that there was sufficient evidence that he aided and abetted his brother in the illegal manufacture of drugs. Furt hermore, although it is possible that Mr. Kirk did not know that his brother was cooking metham phetamine next to him in the car, the jury did not lose its way when it found him guilty of illega l manufacture of drugs. Mr. Kirk’s second and third assignments of error are overruled.

CONCLUSION {¶11} The trial court correctly instructed the jury on aiding and abetting. The jury’s verdict is supported by sufficient evidence and is not against the manifest weight of the evidence. The judgment of the Summit County Common Pleas Court 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 manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent 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. 30.7

Costs taxed to Appellant.

CLAIR E. DICKINSON FOR THE COURT

WHITMORE, P. J. CARR, J. CONCUR.

APPEARANCES: EDWIN C. PIERCE, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.