[Cite as State v. Meddock, 2017-Ohio-4414.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

PIKE COUNTY 

STATE OF OHIO, : 

 : Case No. 16CA864 

 Plaintiff-Appellee, : 

 : 

 vs. : DECISION AND JUDGMENT 

 : ENTRY 

CHARLES J. MEDDOCK, : 

 : 

 Defendant-Appellant. : Released: 06/15/17 

_____________________________________________________________ 

APPEARANCES: 

Timothy Young, Ohio State Public Defender, and Francisco E. Lüttecke, 

Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant. 

Robert Junk, Pike County Prosecuting Attorney, Waverly, Ohio, for 

Appellee. 

_____________________________________________________________ 

 

McFarland, J. 

{¶1} Charles J. Meddock appeals the sentence and judgment of the 

Pike County Court of Common Pleas after a jury found him guilty of one 

count of illegal manufacture of drugs, in violation of R.C. 2925.04(A), and 

one count of illegal assembly or possession of chemicals for the manufacture 

of drugs, in violation of R.C. 2925.041. On appeal, Appellant contends: (1) 

the trial court erred when it permitted improper opinion testimony; (2) the 

trial court erred by permitting irrelevant and prejudicial evidence regarding a 

prior encounter with law enforcement; (3) the trial court erred by overruling 
Pike App. No. 16CA864 2

Appellant’s Crim.R. 29 motion; and (4) the trial court’s cumulative errors 

violated Appellant’s rights to a fair trial and due process. Upon review, we 

find no merit to Appellant’s arguments. As such, the trial court did not err. 

Accordingly, we overrule Appellant’s assignments of error and affirm the 

judgment of the trial court. 

FACTS 

{¶2} On May 1, 2015, Appellant and Donald Entler, Appellant’s 

codefendant, were indicted on one count of illegal manufacturing of drugs, a 

violation of R.C. 2925.04(A)(3) and a second degree felony, and one count 

of illegal assembly of one or more chemicals necessary for the manufacture 

of methamphetamine, a violation of R.C. 2925.041 and a third degree 

felony. The indictments arose from activities which occurred on or about 

April 5, 2015 in Pike County, Ohio. On that date, the Pike County Sheriff’s 

office received an anonymous tip of an active methamphetamine lab in the 

Morgantown area of Pike County. Pike County deputies responding to the 

area caught a strong scent of ether coming eastbound across Morgan’s Fork 

Road. The deputies eventually entered a house on 19 North Street owned by 

Robert Crabtree. Inside, officers discovered Appellant, Entler, and two 

women. Furthermore, officers discovered a one-pot methamphetamine lab 

in the second bedroom of the house where Appellant, alone, was hiding. 
Pike App. No. 16CA864 3

{¶3} Appellant entered not guilty pleas to the above charges and 

eventually proceeded to trial on January 4 and 5, 2016. The State presented 

two witnesses, Corporal Adrian Cottrell and Corporal James Burchett, both 

of the Pike County Sheriff’s Office. The defense did not present any 

evidence. At the close of trial, Appellant was convicted of both counts. 

Appellant was sentenced on January 27, 2016. 

{¶4} At sentencing, the trial court found the counts were allied 

offenses of similar import and should be merged for sentencing. The 

prosecuting attorney elected to proceed upon the illegal manufacture count, 

R.C. 2925.04(A). The trial court then imposed a mandatory prison term of 

four years. This timely appeal followed. 

ASSIGNMENTS OF ERROR 

“I. THE TRIAL COURT ERRED WHEN IT PERMITTED 

OFFICER COTTRELL TO PROVIDE IMPROPER OPINION 

TESTIMONY, DENYING MR. MEDDOCK A FAIR TRIAL 

AND DUE PROCESS OF LAW. 

II. THE TRIAL COURT ERRED WHEN IT ADMITTED 

IRRELEVANT AND PREJUDICIAL EVIDENCE, DENYING 

MR. MEDDOCK HIS RIGHTS TO DUE PROCESS AND A 

FAIR TRIAL. 

III. THE TRIAL COURT VIOLATED MR. MEDDOCK’S 

RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, 

IN THE ABSENCE OF SUFFICIENT EVIDENCE, IT 

FAILED TO GRANT HIS CRIM.R. 29 MOTIONS AS TO 

THE ILLEGAL MANUFACTURING OF 

METHAMPHETAMINES, AND THE ILLEGAL ASSEMBLY 
Pike App. No. 16CA864 4

OR POSSESSION OF CHEMICALS FOR THE 

MANUFACTURE OF DRUGS (METHAMPHETAMINES). 

IV. THE TRIAL COURT VIOLATED MR. MEDDOCK’S 

RIGHT TO DUE PROCESS AND A FAIR TRIAL 

THROUGH CUMULATIVE ERROR.” 

ASSIGNMENTS OF ERROR ONE AND TWO 

{¶5} Since the first two assignments of error both involve evidentiary 

matters, to be reviewed under the same abuse of discretion standard, we 

consider them jointly. 

A. STANDARD OF REVIEW 

{¶6} The admission or exclusion of evidence generally rests within 

the trial court's sound discretion. State v. Minton, 4th Dist. Adams No. 

15CA1006, 2016-Ohio-5427, ¶ 45; State v. Green, 184 Ohio App.3d 406, 

2009-Ohio-5199, 921 N.E.2d 276, ¶ 14 (4th Dist.). Thus, an appellate court 

will not disturb a trial court's ruling regarding the admissibility of evidence 

absent a clear showing of an abuse of discretion with attendant material 

prejudice to defendant. Id. “ ‘A trial court abuses its discretion when it 

makes a decision that is unreasonable, unconscionable, or arbitrary.’ ” State 

v. Williams, 4th Dist. Jackson No. 15CA3, 2016-Ohio-733, ¶ 17, quoting 

State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, 

quoting State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 

971, ¶ 34.
Pike App. No. 16CA864 5

B. LEGAL ANALYSIS 

1. Did Officer Cottrell give improper expert opinion testimony? 

{¶7} Appellant argues the trial court abused its discretion when it 

permitted Officer Cottrell to offer his professional opinion that the materials 

found in the second bedroom where Appellant was hiding were ingredients 

for the production of methamphetamine and were being used to that end 

when the officers arrived. Defense counsel repeatedly objected to Officer 

Cottrell’s testimony. Appellant argues that the trial court erred by 

permitting the officer to testify as an expert pursuant to Evid.R. 702 and 

pursuant to the principles gleaned from Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).1

 However, 

since the officer was not previously disclosed as an expert and did not 

submit an expert report pursuant to Crim.R. 16, defense counsel was 

precluded from appropriate cross-examination. Furthermore, Officer 

Cottrell’s conclusions were the only link between the common household 

items and the alleged methamphetamine lab. Appellant concludes Officer 

 

1 In Daubert, the United States Supreme Court discussed the question of when expert scientific testimony 

is relevant and reliable. There the court was faced with the issue of whether certain scientific evidence was 

admissible in a birth defects case. The Daubert court held, under Fed.R.Evid. 702, that expert scientific 

testimony is admissible if it is reliable and relevant to the task at hand. Id. at 589, 113 S.Ct. at 2795. To 

determine reliability, the Daubert court stated that a court must assess whether the reasoning or 

methodology underlying the testimony is scientifically valid. Id. at 592-593, 113 S.Ct. at 2796. In 

evaluating the reliability of scientific evidence, several factors are to be considered: (1) whether the theory 

or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known 

or potential rate of error, and (4) whether the methodology has gained general acceptance. Id. at 593-594, 

113 S.Ct. at 2797.
Pike App. No. 16CA864 6

Cottrell’s testimony was well outside the limited circumstances in which lay 

witness opinion is proper under Evid.R. 701. 

{¶8} Since the adoption of the Rules of Evidence, both on the state 

and federal levels, many courts have used an Evid.R. 701 analysis and have 

allowed lay witnesses to testify about, for example, the identity of a drug. 

State v. Johnson, 4th Dist. Gallia No. 2014-Ohio-4032, ¶ 38; State v. McKee,

91 Ohio St.3d 292, 2001-Ohio-41, 744 N.E.2d 737. Evid.R. 701 provides: 

“If the witness is not testifying as an expert, his testimony in the 

form of opinions or inferences is limited to those opinions or 

inferences which are (1) rationally based on the perception of 

the witness and (2) helpful to a clear understanding of his 

testimony or the determination of a fact in issue.” 

“[C]ourts have permitted lay witnesses to express their opinions in areas in 

which it would ordinarily be expected that an expert must be qualified under 

Evid.R. 702 * * *. Although these cases are of a technical nature in that they 

allow lay opinion testimony on a subject outside the realm of common 

knowledge, they will fall within the ambit of the rules requirement that a lay 

witness's opinion be rationally based on firsthand observations and helpful in 

determining a fact in issue. These cases are not based on specialized 

knowledge within the scope of Evid.R. 702, but rather are based upon a 

layperson's personal knowledge and experience.” Johnson, supra, at ¶ 38. 
Pike App. No. 16CA864 7

{¶9} Other districts have considered this type of evidentiary 

challenge. In State v. Frye, 5th Dist. Stark No. 2006CA00363, 2007-Ohio7111, the appellant asserted the trial court committed plain error in allowing 

expert testimony from a witness who was not qualified to present alleged 

expert testimony about methamphetamine labs. The appellate court cited the 

applicable standard of review as to evidentiary matters and later pointed out 

that because defense counsel did not move to exclude the alleged improper 

evidence, Frye had waived all but plain error. The appellate court explained 

the evidentiary rules at ¶ 29: 

“Opinion testimony must be considered in light of Evid.R. 701 

and 702. The opinion must be based upon the perceptions of 

the witness and helpful to the trier of fact. Evid.R. 701. In the 

case of an expert opinion, it must relate to matters outside the 

knowledge, experience, training or education of the trier of fact, 

and be based upon reliable, scientific, technical or other 

specialized information. Evid.R. 702. Stated otherwise, ‘For 

expert testimony to be admitted at trial, it must: 1) relate to 

matters beyond the knowledge or experience possessed by lay 

persons or dispel common misconceptions held by lay persons; 

2) be based on reliable scientific, technical, or other specialized 

knowledge; 3) assist the trier of fact to understand the evidence 

or to determine a fact in issue; 4) be relevant and material to an 

issue in the case; and 5) have a probative value which 

outweighs any prejudicial impact. Evid.R. 702; State v. Daws

(1994), 104 Ohio App.3d 448, 462, 662 N.E.2d 805.’ State v. 

Thompson, (Sept. 23, 1997), Franklin App. No. 96APA12-

1660.” 

{¶10} The Frye court observed at ¶ 30: 
Pike App. No. 16CA864 8

“At trial, Ofc. Monigold testified as to his experience in 

investigating methamphetamine labs. Monigold stated he is a 

‘meth certified response personnel.’ As part of that training, 

Monigold learned how to dismantle process labs, and became 

familiar with the process of making methamphetamine and 

conducting methamphetamine investigations. Monigold 

testified there are different ways to make methamphetamine, 

and described the four-step process commonly used. Although 

individual labs may utilize different chemicals, 

pseudoephedrine or eudoephedrine is the one necessary 

ingredient.” 

{¶11} The Frye court concluded that the trial court's admission of Ofc. 

Monigold's testimony did not constitute plain error. 

“Ofc. Monigold's testimony related to matters beyond the 

knowledge and experience of the jury; was based upon 

specialized knowledge and training; assisted the trier of fact in 

understanding the evidence and determining a fact in issue; was 

relevant and material; and had a probative value which 

outweighed any prejudicial impact. Accordingly, such 

testimony was properly admitted as expert testimony.” Id. at 

¶ 33. 

{¶12} Similarly, in State v. Cox, 12th Dist. Clermont No. CA2008-03-

028, 2009-Ohio-928, the appellant argued the trial court erred in permitting 

an agent to testify as to the manufacture of methamphetamine without being 

qualified as an expert witness. The appellate court was also limited to 

consideration of the argument under the plain error standard of review, and 

acknowledged that an alleged error does not constitute plain error unless, but 

for the error, the outcome of the trial clearly would have been otherwise. Id.

at 13. Gragg; McKee; Crim.R. 52(B). 
Pike App. No. 16CA864 9

{¶13} The Cox court found its review of the record yielded no 

indication that the trial court committed plain error in violation of Evid.R. 

701 by admitting the testimony of the agent. The record demonstrated that 

[Agent Sorbello] testified as to his education, training, and experience in the 

field of identifying methamphetamine, including the production of 

methamphetamine. He testified that he had completed 282 hours of special 

courses pertaining to the investigation, dismantling, and supervision of 

“clandestine drug laboratory operations,” and had been involved in 500 

cases involving methamphetamine. Id. at 46. 

“Ohio courts have previously held that “the experience and 

knowledge of a * * * lay witness can establish his * * * 

competence to express an opinion on the identity of a controlled 

substance if a foundation for this testimony is first established.” 

McKee at syllabus; Gragg at ¶ 40-41, 878 N.E.2d 55.” 

{¶14} The appellate court found Agent Sorbello's testimony as to his 

education, training, and experience qualified him to testify in this case as to 

the production process of methamphetamine, including the quantity of 

methamphetamine that could be produced utilizing the pseudoephedrine 

discovered in the appellant's possession. Id. at 46. 

{¶15} In State v. Williams, 9th Dist. Summit No. 25716, 2011-Ohio6604, the appellant objected to a detective's testimony that “[w]ithout a 

doubt there was definitely a methamphetamine lab at [the] Beechwood 
Pike App. No. 16CA864 10

Circle [address].” However, the appellate court found that the detective did 

not need to be qualified as an expert under Evid.R. 702 because the 

statement constituted lay opinion testimony permitted by Evid.R. 701. After 

citing the rule, the appellate court found: 

“Detective Anderson's testimony was admissible as lay opinion 

because it met both of the requirements of Evid.R. 701: it was 

based on his personal observation of the items taken from the 

garbage outside the residence and found within the house, and it 

aided the jury's understanding of the significance of those items 

when found together. See, e.g, State v. Drummond, 111 Ohio 

St.3d 14, 2006-Ohio-5084, at ¶ 222 (summarizing situations in 

which a police officer's lay opinion testimony is proper when 

based on the perception of evidence at a crime scene).” 

{¶16} In Williams, the appellant also asserted an ineffective assistance 

claim. Willams argued his counsel was ineffective in that he failed to object 

to the detective’s testimony. The appellate court emphasized at ¶ 15: 

“[B]ecause Detective Anderson's testimony about 

methamphetamine production was proper under Evid.R. 701, 

there was no reason for counsel to object. When a police 

officer provides general testimony about the process of 

manufacturing methamphetamine that is based on personal 

observation, that testimony is “certainly helpful to the trier of 

fact in identifying the role of the ingredients in the process and 

the equipment necessary in production of methamphetamine.” 

State v. Harper, 5th Dist. No. 07 CA 151, 2008-Ohio-6926, at 

¶ 43. As such, it is lay witness testimony within the purview of 

Evid.R. 701. Id. at ¶ 37-43. Failure to object to such testimony 

on the part of defense counsel does not constitute ineffective 

assistance. Id. at ¶ 44. 

* * * 
Pike App. No. 16CA864 11

In this case, Officer Williams testified regarding the process 

used to manufacture methamphetamine and the materials 

commonly used in that process. His testimony provided the 

context for the jury to appreciate the significance of otherwise 

common household items found together in [Ms. Buck’s] 

residence. It was well within the scope of Evid.R. 701* * *.” 

Id. at ¶ 16. 

{¶17} More recently in State v. Maust, 8th Dist. Cuyahoga No. 

103182, 2016-Ohio-3171, Maust argued that the trial court abused its 

discretion in allowing Vedder, a firefighter, to offer expert testimony as to 

the methamphetamine process, despite not having complied with Crim.R. 

16(K) by providing an expert report prior to trial and not being qualified 

under Evid.R. 702. The state countered that Vedder was not offered as an 

expert witness; nor did his testimony constitute expert testimony. The state 

maintained that Vedder was a fact witness, who testified to his observations 

and actions, such as taking photographs, and simply relayed the relevancy of 

his actions—all of which he was permitted to do under Evid.R. 701. The 

Eighth District Court of Appeals agreed. 

{¶18} After defining Evid.R. 701, the court explained at ¶ 18: 

“Under Evid.R. 701, courts have permitted lay witnesses to 

express their opinions in areas in which it would ordinarily be 

expected that an expert must be qualified under Evid.R. 702. 

State v. Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio5172, ¶ 74, citing State v. McKee, 91 Ohio St.3d 292, 744 

N.E.2d 737 (2001). Indeed, this court has consistently 

recognized that the testimony of a state's witness, who is not 

presented as an expert, is properly admitted under Evid.R. 701 
Pike App. No. 16CA864 12

when (1) the testimony is based on the witness's training or 

experience, (2) the testimony relates to the witness's personal 

observations with the investigation, and (3) the testimony is 

helpful to determine a fact at issue. See, e.g., State v. Wilkinson, 

8th Dist. Cuyahoga No. 100859, 2014-Ohio-5791, ¶ 52-53; 

Primeau at ¶ 75; State v. Cooper, 8th Dist. Cuyahoga No. 

86437, 2006-Ohio-817, ¶ 18.” 

{¶19} The Eighth District Court of Appeals also noted that appellate 

courts have similarly determined that “some testimony offered by 

officers/detectives is lay person witness testimony even though it is based on 

the officer/detective's specialized knowledge.” Id. at 19, quoting State v. 

Johnson, 7th Dist. Jefferson No. 13JE5, 2014-Ohio-1226, ¶ 57 (Detective's 

testimony as to gang activity was permissible under Evid.R. 701 based on 

detective's personal knowledge and experience in the field.); see also State v. 

McClain, 6th Dist. Lucas No. L–10–1088, 2012-Ohio-5264, ¶ 13, and State 

v. Williams, supra, at ¶ 11. 

{¶20} The Maust court concluded at ¶ 20: 

“Our review of the record reveals that the state properly laid a 

foundation for Vedder's testimony and that his testimony was 

directly related to the actions that he personally undertook at the 

scene. Specifically, Vedder—apart from his 40 years as a 

firefighter with the Chagrin Falls Fire Department and 25 years 

as a hazardous materials specialist—testified as to his training 

and experience through the Ohio Fire Academy in 

methamphetamine labs. Further, Vedder also has served as an 

instructor for the Ohio Fire Academy, teaching specifically 

about methamphetamine labs and the chemicals that are 

involved, the precursor chemicals, and the hazards that are 

present from those chemicals. Therefore, Vedder's testimony 
Pike App. No. 16CA864 13

that salt and Coleman lantern fluid are used in the 

methamphetamine process as well as his explanation of the onepot method for making methamphetamine was based on his 

own personal knowledge and experience as established by the 

state. Additionally, Vedder's testimony related specifically to 

his own actions on the scene and why he undertook such 

actions, i.e., photographing items that are used in the 

methamphetamine process. Further, Vedder's testimony was 

helpful to determine the significance of the items found in 

Maust's bedroom. Accordingly, we find no error in the state's 

failure to provide an expert report with respect to Vedder; nor 

did the trial court abuse its discretion in allowing him to testify 

on these matters.” 

{¶21} Here, we have reviewed the record and find that Corporal 

Cottrell’s testimony was properly admitted lay testimony under Evid.R. 701 

because the testimony was based on his training and experience, was related 

to his personal observations during the investigation, and was helpful to 

determination of facts in issue. The State laid a foundation for Cottrell’s 

testimony. Cottrell testified he had completed basic peace officer training in 

2011 and received his state certification. He was hired by the Pike County 

Sheriff’s Department in January 2012. He had just been promoted to 

corporal. Corporal Cottrell’s duties included supervising the deputies on his 

shift, reviewing reports, and correcting paperwork. 

{¶22} Specifically, Corporal Cottrell had received Advanced 

Clandestine chemical lab training at the Bureau of Criminal Investigations in 

Columbus in 2014. The training lasted two weeks and he passed a written 
Pike App. No. 16CA864 14

test at the end. He was trained on the entire process of methamphetamine 

production, and the “one-pot method.” He was also trained as to how to 

package the hazardous materials for disposal. He had investigated 

approximately 50 actual methamphetamine labs, and observed the “one-pot” 

cook labs during the course of his duties. Corporal Cottrell testified the 

“one-pot” method takes 30-60 minutes and some common ingredients are 

pseudoephedrine and drain opener. 

{¶23} Corporal Cottrell’s testimony also related to his personal 

observations at the house located on 19 North Street in the Morgantown area 

of Pike County. Cottrell testified after they received the tip and were en 

route to investigate, he caught the strong scent of ether coming eastbound 

across Morgan’s Fork Road. He testified the smell of ether can be indicative 

of a methamphetamine lab. Based on the smell, he and other officers 

patrolled the area and determined the smell was coming from the house at 19 

North Street owned by Robert Crabtree. Cottrell and another officer 

attempted to make contact at the house. Finally, the homeowner was found 

nearby and gave permission to enter the residence. Upon entering the house 

and going from room to room, Cottrell found 2 females. Donald Entler was 

hiding in the closet of a main bedroom. Appellant was hiding under the bed 

in a second bedroom. 
Pike App. No. 16CA864 15

{¶24} Here, Corporal Cottrell’s testimony was helpful to the jury’s 

understanding and determination of facts in issue. Cottrell testified in the 

second bedroom, on a dresser, there was a soda bottle with a tube coming 

out of the top. It was giving off gas at the end of the hose and fumes could 

be seen in the air. Cottrell testified he had seen many of these and had never 

seen a pop bottle with a hose coming out that was not connected to a 

methamphetamine lab. Based on his training, Cottrell identified this bottle 

as an acid gas generator, a part of the one-pot method of producing 

methamphetamine. Cottrell testified the generator is used to convert the oil 

form of methamphetamine into usable water dissolvent form. 

{¶25} Cottrell testified he performed a field test of liquid found in a 

mason jar in bedroom two. The jar is used in the initial assembly of the one 

pot method. He opined it was flammable liquid. The acid gas generator is 

used in the second phase. Based on his training and experience with 

multiple clandestine meth labs, he opined the acid generator was assembled 

and to the point where the liquid was extracted. 

{¶26} Corporal Cottrell also identified Exhibit 11, a photograph of a 

backpack on the floor inside bedroom 2. He testified a one-pot bottle, an 

open bag of ammonium nitrate, lye, and starting fluid were found inside the 

back pack. 
Pike App. No. 16CA864 16

{¶27} We find Corporal Cottrell’s testimony regarding the one-pot 

method of methamphetamine production was properly admitted under 

Evid.R. 701. As in Williams, supra, Corporal Cottrell testified regarding the 

process used to manufacture methamphetamine and the materials commonly 

used for that process. His testimony was based on his training, certification, 

and experience of identification of clandestine methamphetamine labs. His 

testimony was also based upon his observations at the scene of Appellant’s 

arrest in April 2015. And, as in Williams, his testimony provided the context 

for the jury to appreciate the significance of otherwise common household 

items found together in the house, and specifically the bedroom where 

Appellant was hiding. 

{¶28} We find Corporal Cottrell’s testimony was proper lay opinion 

well within the providence of Evid.R. 601. Accordingly, we find the trial 

court did not abuse its discretion in allowing Corporal Cottrell’s testimony 

regarding clandestine methamphetamine labs and his observations upon 

arriving at 19 North Street. As such, we find no merit to Appellant’s first 

assignment of error and it is hereby overruled. 

2. Did Officer Cottrell give improper and prejudicial testimony about the 

marijuana pipe? 

{¶29} In Appellant’s second assignment of error, he first contends the 
Pike App. No. 16CA864 17

jury heard unrelated and prejudicial testimony about a marijuana pipe found 

in the second bedroom. The jury heard evidence that Appellant smoked 

marijuana, and a photograph of the marijuana pipe was admitted. The only 

evidence linking Appellant to the second bedroom was the marijuana pipe. 

Counsel argues the irrelevant material was prejudicial character evidence. 

Counsel concludes that since there was no overwhelming evidence of guilt, 

the photograph of the pipe, along with other matters to be discussed below, 

was overly prejudicial. 

{¶30} The State responds that the photograph of the marijuana pipe 

was properly admitted because it was relevant evidence used to make the 

existence of a fact of consequence to the determination of the action more 

probable than it would be without the evidence. Appellant claimed he was 

only in the room to hide from law enforcement. However, the marijuana 

pipe establishes a link between Appellant and the second bedroom. 

{¶31} The trial transcript reveals that the State asked Corporal Cottrell 

to identify Exhibits 17, 18, and 19, which he identified as “just basically a 

homemade marijuana pipe that was located in the bedroom, as well.” While 

counsel interposed an objection shortly thereafter to a photograph of the acid 

generator on top of the dresser in bedroom 2, there was no objection to the 

photograph of the marijuana pipe until the close of trial. Later, in Corporal 
Pike App. No. 16CA864 18

Burchett’s testimony, a DVD of his recorded interview with Appellant was 

played for the jury. In the DVD, Appellant was questioned as to whether he 

smoked pot. While his verbal answer is inaudible, Appellant can be seen 

shaking his head affirmatively. Counsel did not interpose an objection as to 

the playing of the DVD. 

{¶32} When defense counsel objected to the admission of the 

marijuana pipe photographs at the close of trial, counsel argued Appellant 

was not charged with possession of drug paraphernalia and the photograph 

was confusing and prejudicial. The court overruled the objection as to 

Exhibit 17 and sustained objections to Exhibits 18 and 19 as “surplusage.” 

Counsel did not object to admission of the DVD. 

{¶33} In State v. Rotarius, 8th Dist. Cuyahoga No. 2002-Ohio-666, 

the appellate court discussed the admissibility of “other acts” evidence at 

trial. Evid.R. 404(B), dealing with the admissibility of “other acts,” states: 

“Evidence of other crimes, wrongs or acts is not admissible to 

prove the character of a person in order to show that he acted in 

conformity therewith. It may, however, be admissible for other 

purposes, such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or 

accident. 

{¶34} R.C. 2945.59, dealing with the admission of “other acts” in the 

context of a criminal trial, provides: 
Pike App. No. 16CA864 19

“In any criminal case in which the defendant's motive or intent, 

the absence of mistake or accident on his part, or the 

defendant's scheme, plan, or system in doing an act is material, 

any acts of the defendant which tend to show his motive or 

intent, the absence of mistake or accident on his part, or the 

defendant's scheme, plan, or system in doing the act in question 

may be proved, whether they are contemporaneous with or prior 

or subsequent thereto, notwithstanding that such proof may 

show or tend to show the commission of another crime by the 

defendant.” 

“If the other act does in fact ‘tend to show’ by substantial proof 

any of those things enumerated, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity or 

absence of mistake or accident, then evidence of the other act 

may be admissible.” Rotarius, supra, at ¶ 15. 

{¶35} Courts, while strictly construing Evid.R. 404(B) and R.C. 

2945.59, and resolving doubts against admissibility, have applied the above 

rules in such a way as to attempt to minimize the amount of prejudice the 

admission of evidence of prior conduct will have on the disposition of the 

current charges faced by an accused. “It is a well established rule that in a 

criminal trial evidence of previous or subsequent criminal acts, wholly 

independent of the offense for which a defendant is on trial, is inadmissible” 

to prove that a defendant has an undesirable trait, disposition or propensity 

toward the commission of a certain type of crime. Id. “Further, [the Ohio 

Supreme Court] has stated that, ‘evidence of other acts of a defendant is 

admissible only when it “tends to show” one of the matters enumerated in 
Pike App. No. 16CA864 20

the statute and only when it is relevant to proof of the guilt of the defendant 

of the offense in question.” ’ Id. at 18. 

{¶36} Rotarious was convicted of possession of marijuana and 

possession of drugs for sale. Some of the evidence used against him was his 

travel history, the hotel room he reserved where a large amount of marijuana 

was found, and his wallet and other identifiers in the hotel room. On appeal, 

Rotarius complained that a Drug Enforcement Administration agent was 

allowed to testify about finding a glass pipe in a bag with Rotarius' name tag 

in the hotel room, and that the pipe tested positive for the presence of 

methamphetamine. Rotarius claimed that this evidence tended to show 

general bad character that tainted the decision-making ability of the jury by 

prejudicially depicting him as a person with a propensity for drugs and drugrelated crime. 

{¶37} Rotarius objected to the admission of this testimony against the 

backdrop of his own argument at trial, that others may have had access to his 

hotel room, with his permission, and that any contraband recovered from the 

room was placed there upon the initiative of someone else, without his 

knowledge or consent. The appellate court disagreed. The court found, in 

light of the complete trial record and the extremely limited amount of 

testimony that this assigned error referenced (a total of two questions), the 
Pike App. No. 16CA864 21

argument was not well taken. The court found any prejudice, in light of the 

compelling, obvious evidence presented against Rotarius, such as his 

personal identification in the hotel room, his flights and travel history, and 

the testimony of his co-defendant Richardson, was de minimus. 

{¶38} We find this to be a closer case than that presented by the facts 

in Rotarius. The court in Rotarius had other compelling evidence to 

consider. Here, ostensibly, Appellant’s only connection to the room he was 

hiding in is the marijuana pipe. However, given Appellant’s admission that 

he used marijuana, and given the failure to object to the playing or 

admission of the DVD, we find the photograph of the marijuana pipe was 

admissible because it did tend to show a substantial connection to the second 

bedroom and the absence of any mistake that Appellant was found there. 

For the foregoing reasons, we find no merit to Appellant’s argument that 

unfair prejudice outweighed the photograph’s probative value. 

3. Did Corporal Cottrell give improper and prejudicial testimony regarding a 

prior encounter with Appellant? 

{¶39} During direct examination, Corporal Cottrell testified regarding 

State’s Exhibit 12, a photograph. He testified: “This is the bed inside the 

bedroom. Just another view of it. The mask is laying there. Uh, there’s a 

leather jacket, uh, the knives. Uh, the last time I dealt with the Defendant, 

he had a knife.” Defense counsel objected, moved to strike the testimony, 
Pike App. No. 16CA864 22

and moved for a mistrial. Counsel argued the prior encounter testimony was 

highly inflammatory and prejudicial. The State argued that it would present 

testimony that Appellant had been removed from the exact same room 

previously and under Evid.R. 404(B), the State would show there was no 

mistake. Defense counsel stated that information had not been provided to 

her. The trial court ultimately overruled the motion for a mistrial and 

sustained the objection. When the jury was brought back in, the trial court 

instructed: 

“Uh, there was an objection registered and a motion for mistrial 

in the presence of the jury just before you were asked to uh,- 

and a motion to strike- just before we went on recess, ladies and 

gentlemen. The court is sustaining the objection to the last 

statement of the officer and ordering it striken. The jury will 

disregard that last statement just made uh, prior to the defense 

counsel’s uh objection and motion to strike. The jury will 

disregard that, not consider that statement for any purpose.” 

{¶40} Appellant contends the testimony regarding a “prior encounter 

with a knife” was unfairly prejudicial and the trial court’s instruction could 

not have cured the damage. The State argues that the knife and previous 

encounter had nothing to do with any of the offenses charged and would 

have had no bearing on the jury. 

{¶41} The First District Court of Appeals considered a similar 

scenario and the “other acts” analysis, in State v. Dorsey, 1st Dist. Hamilton 

No. C-110623, 2012-Ohio-4043. Dorsey appealed a misdemeanor 
Pike App. No. 16CA864 23

conviction for possession of criminal tools. Dorsey argued that the trial 

court erred by admitting the investigator’s testimony involving other acts 

that occurred in the summer of 2010. Dorsey argued the testimony was 

neither probative of his intent on October 27, 2010, nor was it admitted for 

any purpose other than an attempt to show Dorsey's general propensity to 

commit crimes, a purpose specifically prohibited by Evid.R. 404(A) and 

R.C. 2945.59. 

{¶42} The appellate court observed that the only witness at trial, an 

investigator, testified that in many of the automobile thefts that he had 

investigated through the years, a screwdriver had been shoved into the 

stripped steering column and used as the key, and a hammer had been found 

on the floor board. Further, the investigator also testified, over Dorsey's 

objection, that he had had contact with Dorsey sometime in the summer of 

2010, when he had “charged” him with receiving stolen property for being in 

a stolen automobile with a stripped steering column. The officer admitted 

on cross-examination that he had not observed Dorsey breaking into an 

automobile on October 27, 2010, that he was not aware that an automobile 

theft had been attempted or had occurred on that date, and that he had never 

known anyone to use a screwdriver or hammer to steal food from a store 

shelf. 
Pike App. No. 16CA864 24

{¶43} The appellate court observed that evidence of other acts, 

crimes, or wrongs is not admissible to prove the character of a person to 

show acts in conformity on a particular occasion, but it may be admissible 

for other purposes, such as those listed in Evid.R. 404(B) and R.C. 2945.59. 

Id. at ¶ 12. See Evid.R. 404(A) and (B); State v. Griffin, 142 Ohio App.3d 

65, 71-72, 753 N.E.2d 967 (1st Dist.2001). Other bad acts may be 

admissible “to establish circumstantially either an element of the crime or a 

material fact at issue.” Dorsey, supra, quoting Griffin at 71, 753 N.E.2d 967. 

{¶44} The Dorsey court recognized, however, a trial court must 

strictly construe this evidence against admissibility. Id. at 13. See State v. 

DeMarco, 31 Ohio St.3d 191, 194, 509 N.E.2d 1256 (1987). The other-act 

evidence must also meet the other requirements of admissibility set forth in 

the rules of evidence. See Evid.R. 403; Evid.R. 402. Applying the abuse of 

discretion standard, the Dorsey court observed the Supreme Court of Ohio 

defined an “unreasonable” decision as one that is not supported by a “sound 

reasoning process.” AAAA Enterprises, Inc. v. River Place Community 

Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990), cited 

in Morris, at ¶ 14. 

{¶45} At Dorsey’s trial, the state argued that the other-acts testimony 

was probative of Dorsey's intent to use the hammer and screwdrivers for a 
Pike App. No. 16CA864 25

criminal purpose—an element of the offense of possessing criminal tools—

and, therefore, admissible as an exception set forth in Evid.R. 404(B). The 

trial court implicitly agreed and admitted the evidence over Dorsey's 

objection. However, the appellate court found the challenged testimony was 

not probative of the statutory inference set forth in R.C. 2923.24(B)(3), 

because it did not demonstrate the circumstances under which Dorsey 

possessed the hammer and screwdrivers in late October 2010. Id. at 17. 

{¶46} Further, the testimony involved Dorsey's mere presence in a 

stolen automobile with a stripped steering column one-to-four months before 

the investigator found him in possession of the hammer and screwdrivers. 

Dorsey was not “charged” with automobile theft at that time and there was 

no testimony that anyone, including Dorsey, had used a screwdriver or 

hammer to steal that automobile. At best, the State's theory of relevance 

involved an impermissible inference upon an inference. Dorsey, supra, at 

18; See State v. Cowans, 87 Ohio St.3d 68, 78–79, 717 N.E.2d 298 (1999). 

As such, it was not admissible to demonstrate Dorsey's intent or for any of 

the purposes recognized in Evid.R. 404(B), especially without any nexus 

between those facts and Dorsey's possession of the articles in late October 

2010. The Dorsey court concluded there was no sound reasoning process to 

support the trial court's admission of the investigator’s testimony. 
Pike App. No. 16CA864 26

Therefore, the court's decision to admit the challenged testimony was 

unreasonable and an abuse of discretion.2 

{¶47} In this case, we agree with Appellant that the vague 

description of a “prior encounter with a knife” was not probative of his 

intent on April 5, 2015 and its elicitation was more than likely an attempt to 

show his general propensity to commit crime. As such, the testimony is 

forbidden by Evid.R. 404(A) and R.C. 2945.59. However, as in Rotarius,

supra, we note shortly after defense counsel objected and the court removed 

the jury and conducted a bench conference, the trial court issued a limiting 

instruction that the statement regarding the prior encounter was to be 

disregarded. Furthermore, during the closing instructions, the trial court 

reiterated that statements or answers stricken by the court or which they 

were instructed to disregard were not evidence and must be treated as though 

they had not been heard. 

{¶48} “A jury is presumed to follow the instructions, including 

curative instructions, given it by a trial judge.” State v. Plott, 3rd Dist. 

Seneca Nos. 13-15-39, 13-15-40, 2017-Ohio-38, ¶ 122, quoting State v. 

Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995). In Appellant’s case, 

 

2 See, e.g., State v. Huff, 145 Ohio App.3d 555, 566, 763 N.E.2d 695 (1st Dist.2001); State v. Zamorski, 141 

Ohio App.3d 521, 525, 752 N.E.2d 288 (1st Dist.2000); State v. Echols, App.3d 728, (1st Dist.1998); 

Eckert v. Jacobs, 1st Dist. No. C910445, 1992 Ohio App. LEXIS 5920, 1992 WL 355448, 128 Ohio 

App.3d 677, 698–699. 
Pike App. No. 16CA864 27

the trial court instructed the jury twice to disregard testimony which was 

stricken from the record. In the absence of any indication to the contrary, 

we presume the jury followed the court’s instructions. As such, we find no 

merit to Appellant’s argument. Based on the foregoing, we overrule 

Appellant’s second assignment of error. 

ASSIGNMENT OF ERROR THREE 

{¶49} Appellant argues the trial court erred when it denied his 

motions for acquittal for the charges of illegal manufacture of 

methamphetamine and illegal assembly or possession of chemicals 

necessary for manufacture of methamphetamine. He argues the evidence is 

insufficient to demonstrate that Appellant was the individual responsible for 

the methamphetamine lab in question. Specifically he argues the evidence 

that he was hiding in the second bedroom fails to establish any connection 

between his presence and knowing participation in illegal activity. 

However, the State contends that the evidence demonstrates that none of the 

items consistent with the manufacture of methamphetamine were found in 

any area of the house besides bedroom two, where Appellant was hiding and 

fumes and gases were being actively omitted pursuant to the one-pot lab. 

The State asserts any rational trier of fact could have found each element, 

including “knowledge” proven beyond a reasonable doubt. 
Pike App. No. 16CA864 28

A. STANDARD OF REVIEW 

{¶50} Under Crim.R. 29(A), “[t]he court on motion of a defendant 

* * *, after the evidence on either side is closed, shall order the entry of 

acquittal * * *, if the evidence is insufficient to sustain a conviction of such 

offense or offenses.” State v. Wright, 4th Dist. Athens No. 15CA31, 2016-

Ohio-7654, ¶ 21. “A motion for acquittal under Crim.R. 29(A) is governed 

by the same standard as the one for determining whether a verdict is 

supported by sufficient evidence.” Id. quoting State v. Tenace, 109 Ohio 

St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37; State v. Husted, 2014-

Ohio-4978, 23 N.E.3d 253, ¶ 10 (4th Dist.). “When a court reviews a record 

for sufficiency, ‘[t]he 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 22, quoting State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio1019, 9 N.E.3d 930, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259, 574 

N.E.2d 492 (1991), paragraph two of the syllabus; Jackson v. Virginia, 443 

U.S. 307, 99 S.Ct. 2781 (1979). In making its ruling a court does not weigh 

the evidence but simply determines whether the evidence, if believed, is 

adequate to support a conviction. In other words, the motion does not test 

the rational persuasiveness of the state's case, but merely its legal adequacy. 
Pike App. No. 16CA864 29

State v. Reyes–Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338, 

¶ 15. 

B. LEGAL ANALYSIS 

{¶51} Appellant was convicted of R.C. 2925.04, illegal manufacture, 

which states: 

“(A) No person shall knowingly cultivate marihuana or 

knowingly manufacture or otherwise engage in any part of the 

production of a controlled substance.” 

{¶52} He was also convicted of R.C. 2925.041, illegal assembly or 

possession of chemicals for manufacture of drugs, which provides: 

“(A) 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 in schedule I or II in violation of section 

2925.04 of the Revised Code.” 

{¶53} Furthermore, R.C. 2925.041(B) provides: 

“In a prosecution under this section, it is not necessary to allege 

or prove that the offender assembled or possessed all chemicals 

necessary to manufacture a controlled substance in schedule I 

or II. The assembly or possession of a single chemical that may 

be used in the manufacture of a controlled substance in 

schedule I or II, with the intent to manufacture a controlled 

substance in either schedule, is sufficient to violate this 

section.” 

{¶54} The evidence against Appellant is entirely circumstantial and 

we begin by recognizing that it is well-established, however, that “a 

defendant may be convicted solely on the basis of circumstantial evidence. 
Pike App. No. 16CA864 30

Wickersham, supra, ¶ 39, quoting State v. Nicely, 39 Ohio St.3d 147, 151, 

529 N.E.2d 1236 (1988). “Circumstantial evidence and direct evidence 

inherently possess the same probating value.” Jenks, paragraph one of the 

syllabus. “Circumstantial evidence is defined as ‘[t]estimony not based on 

actual personal knowledge or observation of the facts in controversy, but of 

other facts from which deductions are drawn, showing indirectly the facts 

sought to be proved. * * *’ ” Nicely, 39 Ohio St.3d at 150, quoting Black's 

Law Dictionary (5 Ed.1979) 221. 

{¶55} “ ‘[P]ossession’ is defined as ‘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.’ ” Wickersham, supra, at 10, quoting State v. 

Gavin, 4th Dist. Scioto No. 13CA3592, 2015-Ohio-2996 ¶ 35; citing R.C. 

2925.01(K). “Possession may be actual or constructive.” Gavin; quoting 

State v. Moon, 4th Dist. Adams No. 08CA875, 2009-Ohio-4830, ¶ 19; citing 

State v. Butler, 42 Ohio St.3d 174, 175, 538 N.E.2d 98 (1989) (“[t]o 

constitute possession, it is sufficient that the defendant has constructive 

possession”). 

{¶56} “ ‘Actual possession exists when the circumstances indicate 

that an individual has or had an item within his immediate physical 
Pike App. No. 16CA864 31

possession.’ ” Wickersham, supra, at 11, quoting Gavin at ¶ 36; State v. 

Kingsland, 177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶ 13 

(4th Dist.; quoting State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio5747, ¶ 39. “Constructive possession exists when an individual knowingly 

exercises dominion and control over an object, even though that object may 

not be within his immediate physical possession.” Gavin, supra; quoting 

State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362, syllabus (1982); 

State v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 19. For 

constructive possession to exist, the State must show that the defendant was 

conscious of the object's presence. Gavin, supra; Hankerson at 91; 

Kingsland at ¶ 13. Both dominion and control, and whether a person was 

conscious of the object's presence, may be established through 

circumstantial evidence. Gavin, supra; Brown at ¶ 19. “Moreover, two or 

more persons may have joint constructive possession of the same object.” Id. 

{¶57} By the end of Appellant’s trial, the jury had heard the following 

evidence: 

1) Corporal Cottrell found Appellant and 3 others in the 19 

North Street residence, in the presence of the strong smell of 

ether. 

 

2) Appellant was found to have an outstanding warrant and was 

found hiding under the bed in a second bedroom, where no 

other person was located. 
Pike App. No. 16CA864 32

3) In the second bedroom on a dresser, there was a soda bottle 

with a tube coming out of the top, an acid gas generator 

emitting fumes, State’s Exhibit 7. Based on his training, 

Cottrell identified this as the second part of the one-pot method 

of producing methamphetamine. 

3) Cottrell identified Exhibit 9, the closet of bedroom two. He 

identified Exhibit 10, a mason jar of liquid inside the cabinet 

inside bedroom two. The jar would be used in the initial 

assembly of the one-pot method. Cottrell tested the liquid on 

the scene and determined it was flammable. 

4) Cottrell identified Exhibit 11, a backpack lying on the 

ground inside the second bedroom. A one-pot bottle, an open 

bag of ammonium nitrate, lye and starting fluid were inside the 

backpack. Cottrell identified Exhibits 13 and 14, the one-pot 

bottle out of the backpack. 

5) Cottrell also identified the following: 

-State’s Exhibit 1, drain opener and salt used in the acid 

generator; 

-State’s Exhibit 4, aluminum foil used to produce the 

hydrochloric gas or also used to help smoke 

methamphetamine; 

 

-State’s Exhibits 15 and 16, ammonium nitrate, a key 

ingredient for the one-pot method, from an opened cold 

pack; 

-State’s Exhibit 27, coffee filters used to filter final 

product, on top of the dresser in bedroom two; 

-State’s Exhibit 17, the homemade marijuana pipe; and, 

-State’s Exhibits 30 and 31, sodium chloride, cleansing 

water used to clean syringes. Cottrell testified 

methamphetamine can be inhaled, administered with a 

syringe, or taken orally. 
Pike App. No. 16CA864 33

6) Corporal James Burchett of the Pike County Sheriff’s Office 

corroborated Corporal Cottrell’s testimony about the 

anonymous tip and the smell of ether outside of Robert 

Crabtree’s home. 

7) Corporal Burchett identified Appellant and State’s Exhibit 

32, a DVD he recorded of his interview with Appellant. During 

the interview, Appellant acknowledged that he knew he had 

warrants and that he smokes pot. He denied using 

methamphetamine or knowing who was manufacturing 

methamphetamine in the house. 

{¶58} After reviewing the record, and viewing the evidence in a light 

most favorable to the prosecution, we find any rational trier of fact could 

have found the essential elements of the counts against Appellant proven 

beyond a reasonable doubt. Appellant has argued that there was insufficient 

evidence to prove his knowing involvement with the methamphetamine lab 

found on the premises. “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.” State v. EvansGoode, 4th Dist. Meigs No. 15CA10, 2016-Ohio-5361, ¶ 8; R.C. 

2901.22(B). “[W]hether a person acts knowingly can only be determined, 

absent a defendant's admission, from all the surrounding facts and 

circumstances * * *.” Garner, 74 Ohio St.3d 49, 60, 656 N.E.2d 623 (1995), 

quoting State v. Huff, 145 Ohio App.3d 555, 563, 763 N.E.2d 695 (1st 
Pike App. No. 16CA864 34

Dist.2001). Furthermore, regarding circumstantial evidence of intent, it has 

been stated: 

“Intent lies within the privacy of an individual's own thoughts 

and is not susceptible of objective proof.” Wickersham, supra, 

at ¶ 30, quoting State v. Garner, 74 Ohio St.3d 49, 60, 656 

N.E.2d 623 (1995). So “intent ‘can never be proved by the 

direct testimony of a third person.’ ” State v. Moon, 4th Dist. 

Adams App. No. 08CA875, 2009-Ohio-4830, ¶ 20, quoting 

State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293 (1990). 

Rather it “ ‘must * * * be inferred from the act itself and the 

surrounding circumstances, including the acts and statements of 

the defendant surrounding the time of the offense.’ ” Id.,

quoting State v. Wilson, 12th Dist. Warren No. CA2006–01–

007, 2007-Ohio-2298, ¶ 41. 

{¶59} In State v. Cuffman, 3rd Dist. Crawford Nos. 3-11-01, 3-11-02, 

2011-Ohio-4324, the appellate court observed: “A defendant's mere 

presence in an area where drugs are located does not conclusively establish 

constructive possession.” Id. at 32, quoting Cooper, at ¶ 26, citing State v. 

Cola, 77 Ohio App.3d 448, 450, 602 N.E.2d 730 (11th Dist.1991); 

Cincinnati v. McCartney, 30 Ohio App.2d 45, 48, 281 N.E.2d 855 (1st 

Dist.1971). On the other hand, “readily usable drugs found in very close 

proximity to a defendant may constitute circumstantial evidence and support 

a conclusion that the defendant had constructive possession of such drugs.” 

Cuffman, supra, quoting State v. Barr, 86 Ohio App.3d 227, 235, 620 

N.E.2d 242 (8th Dist.1993), citing State v. Pruitt, 18 Ohio App.3d 50, 480 
Pike App. No. 16CA864 35

N.E.2d 499 (8th Dist. 1984). See also State v. Stewart, 3rd Dist. No. 13–08–

18, 2009-Ohio-3411, ¶ 51. 

{¶60} At Cuffman’s trial for possession of heroin, three officers 

testified to the events leading up to Cuffman's arrest. One officer testified 

that the two aluminum foil balls he found at Cuffman's feet were tested and 

found to contain 0.33 grams of heroin. He further testified that another 

officer located a third aluminum foil ball five to ten feet away from 

Cuffman. Cuffman denied using heroin. The appellate court concluded that 

a rational trier of fact could have concluded that Cuffman possessed heroin. 

Cuffman was the only person in very close proximity to the heroin besides 

the law enforcement officers.3

 

{¶61} In State v. Weckner, 12th Dist. Brown No. CA2001-06-009, 

2002-Ohio-1012, Weckner was one of four individuals in a car that’s search 

revealed a plastic gas can, coffee filters, drain cleaner, plastic bottle with a 

hose taped to it, glass mason jars with substances in them, rubber gloves, 

 

3 However, in this case, the jury was presented with more than evidence of Cuffman's presence near the 

area in which the drugs were located. The jury was presented with evidence that two of the foil balls 

containing heroin were found lying at Cuffman's feet; in other words, in “very close proximity” to 

Cuffman. Barr, 86 Ohio App.3d at 235, citing Pruitt, 18 Ohio App.3d 50; Stewart, 2009-Ohio-3411, at 

¶ 51. The jury also heard testimony that the foil balls containing heroin were found after a physical 

struggle occurred between Cuffman and the officers. The jury also heard evidence that Cuffman was 

observed entering and leaving a known drug house after being there for no more than five minutes—typical 

of a drug transaction—just minutes before he was found with the heroin. The jury also heard evidence of 

Cuffman's nervous behavior during the stop; specifically, evidence that Cuffman would not remove his left 

hand from his pocket and later removed the contents of the pocket but tightly cupped the contents in his 

hand. All of this circumstantial evidence, along with the very close proximity of the drugs to Cuffman's 

person, could lead a rational trier of fact to conclude that Cuffman constructively possessed the heroin.
Pike App. No. 16CA864 36

batteries, starter fluid, Drain-o, salt and a plastic milk crate filled with mason 

jars. The items were suspected to be a portable methamphetamine lab. No 

one in the vehicle acknowledged ownership of the items. 

{¶62} After an investigation, Weckner was arrested and charged with 

one count of aggravated possession of methamphetamines in violation of 

R.C. 2925.11(A) and one count of manufacturing methamphetamines in 

violation of R.C. 2925.04(A). Weckner was later convicted of both counts. 

On appeal, Weckner argued (1) his convictions were against the manifest 

weight of the evidence, (2) that the State did not prove that he had 

possession of the drugs or that he was involved in the manufacture of the 

methamphetamine, and (3) that no evidence linked him to the drugs or the 

lab components that were found. 

{¶63} The Weckner court, as did the Cuffman court, cited Pruitt, 480 

N.E.2d 499, for the principle that “[R]eadily usable drugs in close proximity 

of an accused may constitute sufficient and direct circumstantial evidence to 

support a finding of constructive possession.” See also Hamilton v. Barnett

(Aug. 3, 1998), Butler App. No. CA97-11-222, unreported. The appellate 

court also noted the same reasoning applies to the discovery of other 

contraband in close proximity to the defendant. State v. Williams (Dec. 7, 

2000), Cuyahoga App. No. 76816, unreported. The appellate court noted the 
Pike App. No. 16CA864 37

evidence before the jury included the fact that Weckner was a passenger in a 

vehicle that contained the ingredients and tools necessary to manufacture 

methamphetamines. In addition, inside the vehicle were several mason jars 

containing methamphetamines in varying stages of manufacture, including 

some jars containing a completed product.4

 The appellate court found the 

jury did not lose its way by finding appellant guilty of both possession and 

manufacture of methamphetamines. 

{¶64} In State v. Isaac, 5th Dist. Richland No. 15CA87, 2016-Ohio7376, the defendant maintained the State had failed to prove the culpable 

mental state of “knowingly” in two counts of illegal manufacture of 

methamphetamine and illegal assembly or possession. Isaac, who was 

temporarily staying with a friend while experiencing marital problems, 

asserted she had no knowledge of the methamphetamine lab in the basement 

of her friends’ residence. Isaac maintained the State did not demonstrate her 

knowledge of the methamphetamine lab or the possession of chemicals in 

the basement. The appellate court disagreed, holding at ¶ 57: 

“Viewing the evidence in a light most favorable to the 

prosecution, we find a rational trier of fact could have found the 

essential elements of the charges proven beyond a reasonable 

doubt. * * * Testimony of [her friend’s husband] at trial 

 

4 Furthermore, at Weckner’s trial, testimony revealed that this vehicle was seen near Weckner’s residence 

on several occasions. Testimony also revealed Weckner’s comments evidencing an awareness of the 

contents of the vehicle.
Pike App. No. 16CA864 38

established [Isaac] used the basement in the home, including 

doing laundry there. Items consistent with the manufacture of 

methamphetamine were discovered in the basement. The liquid 

from the one-pot cook method taken from the home 

subsequently tested positive for methamphetamine. Viewing 

the evidence in a light most favorable to the prosecution, we 

find a rational trier of fact could find beyond a reasonable doubt 

Appellant knew about and participated in the manufacture of 

methamphetamine and possessed chemicals necessary for the 

manufacture of methamphetamine * * *.” Id. at 58.5

{¶65} In State v. Seldon, 8th Dist. Cuyahoga No. 98429, 2013-Ohio819, wherein the appellate court reversed Seldon’s conviction for assembly 

or possession of chemicals used to manufacture methamphetamine, the court 

observed at ¶ 24: 

“In cases throughout Ohio where convictions for Assembly or 

Possession of Chemicals used to Manufacture Controlled 

Substance were upheld, the state produced evidence from which 

a jury could conclude beyond a reasonable doubt that the 

requisite intent to manufacture existed. * * * Such evidence 

included the following: * * * the defendant, in addition to 

chemicals, possessed the actual physical equipment needed to 

manufacture methamphetamine, such as beakers, filters, tubing, 

electrical tape, copper fittings, a heat source, etc., State v. 

Throckmorton, 4th Dist. No. 08CA17, 2009-Ohio-5344, 

reversed on other grounds * * *.” 

{¶66} We acknowledge the previously-referenced cases, wherein 

similar convictions were affirmed, involved fact patterns in which additional 

corroborative evidence was submitted to the juries. Here, Appellant was 

 

5

 In addition, testimony at trial established [Isaac] had a prior history of purchasing a significant quantity of 

pseudoephedrine, including a recent attempted purchase with [her codefendant] with whom she was 

residing on August 12, 2014. Specifically, [Isaac] purchased an inordinate amount of pseudoephedrine in 

the months prior to August 12, 2014. 
Pike App. No. 16CA864 39

discovered alone in bedroom two in close proximity to an acid gas generator 

on a dresser, a mason jar with flammable liquid on a shelf in the bedroom 

two closet, and a one-pot bottle in a backpack on the floor. The acid gas 

generator was actively giving off fumes, hydrogen chloride gas. 

{¶67} Corporal Cottrell testified the acid generator was assembled and 

was reacted to the point where the hydrogen chloride gas would be 

administered to the liquid of the one-pot once the liquid was extracted. 

Various other necessary ingredients were found in bedroom two, including 

drain opener, ammonium nitrate, starting fluid, salt, coffee filters. A 

marijuana pipe, another item of contraband, was found on the bed in 

bedroom two. Appellant acknowledged marijuana use. 

{¶68} While we cannot say the evidence against Appellant is 

overwhelming, he was found in close proximity to an active one-pot 

methamphetamine lab. The acid gas generator, with the hose and fumes, is 

the physical equipment, as noted in Throckmorton, needed to manufacture 

methamphetamine. And, he was found in the presence of other items, as in 

Isaac and Weckner, consistent with the manufacture of methamphetamine. 

The marijuana pipe, an entirely separate item of contraband, connects him to 

the second bedroom. 
Pike App. No. 16CA864 40

{¶69} “[P]ersons are presumed to have intended the natural, 

reasonable and probable consequences of their voluntary acts.” Wickersham, 

supra, quoting Garner at 60. Construing the evidence in favor of the 

prosecution, we find any rational trier of fact could find Appellant 

knowingly possessed the necessary chemicals and intended to manufacture 

methamphetamine in the room in which he was located with a one-pot lab 

actively giving off fumes. As such, we find the trial court did not err by 

overruling Appellant’s Crim.R. 29 motion for acquittal. We hereby overrule 

the third assignment of error. 

ASSIGNMENT OF ERROR FOUR 

{¶70} Appellant argues the three flaws which occurred in his trial, 

highlighted above, are serious enough to make his case the rare one which 

qualifies for reversal based on cumulative error. Appellee responds that the 

trial court did not commit a single error, let alone multiple instances of 

harmless error. As such Appellee concludes Appellant’s convictions do not 

warrant reversal. 

A. STANDARD OF REVIEW 

{¶71} Under the doctrine of cumulative error, “a conviction will be 

reversed where the cumulative effect of errors in a trial deprives a defendant 

of the constitutional right to a fair trial even though each of [the] numerous 
Pike App. No. 16CA864 41

instances of trial court error does not individually constitute cause for 

reversal.” State v. Smith, 2016-Ohio-5062, 70 N.E.3d 150, (4th Dist.), ¶ 106, 

quoting State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). 

“Before we consider whether ‘cumulative errors’ are present, we must first 

find that the trial court committed multiple errors.” State v. Harrington, 4th 

Dist. No. 05CA3038, 2006-Ohio-4388, ¶ 57, citing Goff, 82 Ohio St.3d at 

140, 694 N.E.2d 916. 

B. LEGAL ANALYSIS 

{¶72} By our resolution of the above assignments of error having 

found the trial court did not commit error, the cumulative error doctrine is 

inapplicable herein. As such, we summarily overrule Appellant’s final 

assignment of error and affirm the judgment of the trial court. 

 JUDGMENT AFFIRMED. 
Pike App. No. 16CA864 42

JUDGMENT ENTRY 

It is ordered that the JUDGMENT BE AFFIRMED and costs be 

assessed to Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Pike County Common Pleas Court to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE 

UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL 

COURT OR THIS COURT, it is temporarily continued for a period not to 

exceed sixty days upon the bail previously posted. The purpose of a 

continued stay is to allow Appellant to file with the Supreme Court of Ohio 

an application for a stay during the pendency of proceedings in that court. If 

a stay is continued by this entry, it will terminate at the earlier of the 

expiration of the sixty day period, or the failure of the Appellant to file a 

notice of appeal with the Supreme Court of Ohio in the forty-five day appeal 

period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme 

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the 

appeal prior to expiration of sixty days, the stay will terminate as of the date 

of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Abele, J.: Concurs in Judgment and Opinion. 

Hoover, J.: Concurs in Judgment and Opinion as to Assignments of Error I, 

III, & IV; Concurs in Judgment Only as to Assignment of Error 

II. 

For the Court, 

 BY: ______________________________ 

 Matthew W. McFarland, Judge 

NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this 

document constitutes a final judgment entry and the time period for 

further appeal commences from the date of filing with the clerk.