[Cite as State v. Bostwick, 2011-Ohio-3671.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No: 10CA3382 

 : 

 v. : 

 : DECISION AND

JASON D. BOSTWICK, : JUDGMENT ENTRY

 : 

 Defendant-Appellant. : File-stamped date: 7-21-11 

APPEARANCES:

George L. Davis, IV, George L. Davis, III Co., L.L.C, Portsmouth, Ohio, for Appellant. 

Mark E. Kuhn, Scioto County Prosecutor, Portsmouth, Ohio, for Appellee. 

Kline, J.: 

{¶1} Jason D. Bostwick (hereinafter “Bostwick”) appeals the judgment of the Scioto 

County Court of Common Pleas. After a jury trial, Bostwick was found guilty of 

Assembly or Possession of Chemicals Used to Manufacture Controlled Substance with 

Intent to Manufacture Controlled Substance, a violation of R.C. 2925.041(A). On 

appeal, Bostwick first contends (1) that insufficient evidence supports his conviction and 

(2) that his conviction is against the manifest weight of the evidence. We disagree. 

Instead, we find substantial evidence upon which the trier of fact could have reasonably 

concluded that the elements of R.C. 2925.041(A) were proven beyond a reasonable 

doubt. Next, Bostwick contends that his trial counsel was ineffective for not filing a 

motion to suppress evidence. Because any potential motion to suppress would have 
Scioto App. No. 10CA3382 2 

failed, we disagree. Accordingly, we overrule Bostwick’s assignments of error and 

affirm the judgment of the trial court. 

I. 

{¶2} Late one evening, Bostwick was driving a 1989 Ford pickup truck. State 

Trooper Nick Lewis (hereinafter “Trooper Lewis”) was driving behind Bostwick and ran a 

registration check on Bostwick’s vehicle. After learning that the tags on Bostwick’s truck 

actually belonged to a 2002 Pontiac, Trooper Lewis pulled the truck over. 

{¶3} Trooper Lewis asked to see Bostwick’s driver’s license. Although he claimed 

to have one, Bostwick did not have a driver’s license on him at the time. As a result, 

Bostwick was placed in the police cruiser while Trooper Lewis determined Bostwick’s 

driving status. 

{¶4} While in the cruiser, Bostwick asked Trooper Lewis to turn off the truck’s 

headlights. Apparently, Bostwick was afraid that the headlights would run down the 

battery. Trooper Lewis then returned to the truck and discovered a syringe on the 

ground. During Bostwick’s trial, Trooper Lewis described finding the syringe: “I’m 

walking -- walked back up to the vehicle to * * * turn off the headlights, there’s a syringe 

between the -- basically between the door and cab of the truck, basically it looks like the 

door came open and [the syringe] just fell to the ground.” Transcript at 27. Additionally, 

Trooper Lewis was certain that the syringe was not there before because “it was 

basically in a spot where [he] would have had to step on it.” Id. 

{¶5} Trooper Lewis knew that syringes were “common with drug abuse around 

[that] area.” Id. And for that reason, he decided to search Bostwick’s vehicle for 

evidence of drugs. Trooper Lewis and another state trooper then recovered the 
Scioto App. No. 10CA3382 3 

following items from Bostwick’s truck: two empty cans of starting fluid, gas cans, tubing, 

brass fittings, and a broken mason jar. Recognizing that these items are used in 

methamphetamine production, Trooper Lewis placed Bostwick under arrest. 

{¶6} On February 24, 2010, a Scioto County grand jury indicted Bostwick for 

“Illegal Possession of Chemicals for the Manufacture of Drugs,” a third-degree felony in 

violation of “R.C. 2925.041(A)/(C).” Indictment. 

{¶7} Bostwick’s jury trial took place on July 12, 2010. Trooper Lewis and Detective 

John Koch (hereinafter “Detective Koch”) were two of the state’s witnesses. Detective 

Koch testified as an expert witness on methamphetamine production, particularly the 

“Nazi method” of production that is prevalent in Southern Ohio. According to Detective 

Koch, the items recovered from Bostwick’s truck are frequently associated with the Nazi 

method. 

{¶8} Eventually, the jury found Bostwick guilty of Assembly or Possession of 

Chemicals Used to Manufacture Controlled Substance with Intent to Manufacture 

Controlled Substance, and the trial court sentenced Bostwick accordingly. 

{¶9} Bostwick appeals and asserts the following two assignments of error: I. 

“Appellant’s Conviction for Illegal Possession of Chemicals for the Manufacture of Drugs 

was supported by insufficient evidence and was against the manifest weight of the 

evidence.” And, II. “Appellant was denied his constitutional right of due process based 

upon ineffective assistance of counsel.” 

II. 

{¶10} In his first assignment of error, Bostwick contends (1) that his conviction is 

against the manifest weight of the evidence and (2) that insufficient evidence supports 
Scioto App. No. 10CA3382 4 

his conviction. ‘“When an appellate court concludes that the weight of the evidence 

supports a defendant’s conviction, this conclusion necessarily includes a finding that 

sufficient evidence supports the conviction.’ State v. Puckett, [191 Ohio App.3d 747], 

2010-Ohio-6597, at ¶34. ‘Thus, a determination that [a] conviction is supported by the 

weight of the evidence will also be dispositive of the issue of sufficiency.’ Id., quoting 

State v. Lombardi, Summit App. No. 22435, 2005-Ohio-4942, at ¶9, in turn, quoting 

State v. Roberts (Sept. 17, 1997), Lorain App. No. 96CA006462[.] Therefore, we first 

consider whether [Bostwick’s] conviction[ is] against the manifest weight of the 

evidence.” State v. Leslie, Hocking App. Nos. 10CA17 & 10CA18, 2011-Ohio-2727, at 

¶15 (internal footnote omitted). 

{¶11} When determining whether a criminal conviction is against the manifest 

weight of the evidence, we “will not reverse a conviction where there is substantial 

evidence upon which the [trier of fact] could reasonably conclude that all the elements 

of an offense have been proven beyond a reasonable doubt.” State v. Eskridge (1988), 

38 Ohio St.3d 56, at paragraph two of the syllabus. See, also, State v. Smith, Pickaway 

App. No. 06CA7, 2007-Ohio-502, at ¶33. We “must review the entire record, weigh the 

evidence and all reasonable inferences, consider the credibility of the witnesses, and 

determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its 

way and created such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial granted.” Id. at ¶41, citing State v. Garrow (1995), 103 Ohio 

App.3d 368, 370-371; State v. Martin (1983), 20 Ohio App.3d 172, 175. But “[o]n the 

trial of a case, * * * the weight to be given the evidence and the credibility of the 
Scioto App. No. 10CA3382 5 

witnesses are primarily for the trier of the facts.” State v. DeHass (1967), 10 Ohio St.2d 

230, at paragraph one of the syllabus. 

{¶12} Under R.C. 2925.041(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[.]” Thus, R.C. 2925.041(A) consists of the following elements: “(1) ‘knowingly,’ (2) 

‘assemble or possess,’ (3) ‘chemicals that may be used to manufacture a controlled 

substance,’ and (4) ‘intent to manufacture a controlled substance[.]’” State v. Creech, 

188 Ohio App.3d 513, 2010-Ohio-2553, at ¶20. Furthermore, “[m]ethamphetamine is a 

controlled substance. R.C. 3719.41, Schedule II(C)(2).” State v. Lane, Summit App. 

No. 25437, 2011-Ohio-2381, at ¶8. 

{¶13} Essentially, Bostwick advances two arguments under his first assignment of 

error. First, Bostwick argues that, “at the time of the traffic stop[, he] never actually 

possessed any chemicals whatsoever for the manufacture of a controlled substance.” 

Brief of Appellant at 12. And second, Bostwick argues that “the state did not prove any 

intent to manufacture a controlled substance.” Id. For these reasons, Bostwick 

contends that his convictions are against the manifest weight of the evidence. 

{¶14} Despite Bostwick’s arguments, we find that substantial evidence supports his 

conviction. Bostwick’s truck contained items frequently associated with the “Nazi 

method” of methamphetamine production, which, according to Detective Koch, is the 

primary method of methamphetamine production in Southern Ohio. For example, 

troopers recovered two cans of starting fluid from Bostwick’s truck. Both cans had small 

holes in them, and Detective Koch explained the significance of the holes: “[T]he holes 
Scioto App. No. 10CA3382 6 

[were] punched near the bottom of these cans, and this is a method or a way to extract 

the ether from the starting fluid. By turning [the can] upside down and spraying the 

aerosol out and punching the can, then you will have ether * * * -- it’s a collection 

method.” Transcript at 101. As Detective Koch noted, ether is used in the Nazi method 

of methamphetamine production. In fact, Koch testified that ether “is one [of] the 

ingredients that [he] find[s the] most.” Transcript at 102. 

{¶15} In addition to the cans of starting fluid, the police recovered gas cans, tubing, 

brass fittings, and a broken mason jar from Bostwick’s truck. Detective Koch testified 

about how these items are used in the Nazi method of methamphetamine production. 

Gas cans are used “to produce hydrogen chloride gas,” which is a chemical used in the 

production of methamphetamine. Transcript at 103. Tubing and brass fittings are used 

to collect “anhydrous ammonia” and “transport chemicals * * * during the manufacturing 

process.” Transcript at 105. And finally, “a lot of the cooking [of methamphetamine] is 

done within [mason] jars.” Transcript at 103. Thus, the items recovered from 

Bostwick’s truck are associated with the most prevalent form of methamphetamine 

production in Southern Ohio. 

{¶16} Here, the evidence supports the inference that Bostwick was involved in the 

production of methamphetamines. First, Bostwick possessed items frequently 

associated with the Nazi method of production. And second, Trooper Lewis found a 

syringe that apparently fell out of Bostwick’s truck. This is significant because, as 

Detective Lewis testified, methamphetamines are commonly injected. 

{¶17} Because the jury could have reasonably inferred that Bostwick was involved 

in methamphetamine production, we reject the two arguments under Bostwick’s first 
Scioto App. No. 10CA3382 7 

assignment of error. That is, (1) it was not necessary for the state to demonstrate that 

Bostwick actually possessed chemicals at the time of the traffic stop, and (2) there was 

substantial evidence for the jury to find that Bostwick intended to manufacture 

methamphetamines In rejecting Bostwick’s two arguments, we recognize that the 

evidence against him is mostly circumstantial. But “Ohio courts have repeatedly 

concluded that ‘circumstantial evidence can have the same probative value as direct 

evidence. * * * A conviction can be sustained based on circumstantial evidence alone.’” 

State v. Smith, Highland App. No. 09CA29, 2010-Ohio-4507, at ¶44, quoting State v. 

Franklin (1991), 62 Ohio St.3d 118, 124 (omission sic). 

{¶18} We reject Bostwick’s first argument because the circumstantial evidence 

shows that Bostwick did possess ether at some point in time. (For ease of analysis, we 

will limit our discussion to ether. Nevertheless, the jury could have reasonably inferred 

that Bostwick possessed hydrogen chloride gas, anhydrous ammonia, or other 

chemicals used in the Nazi method of methamphetamine production.) The cans of 

starting fluid had small holes in them, which, according to Detective Koch, is evidence 

that the cans had already been drained of ether. Thus, the jury could have reasonably 

inferred that Bostwick collected ether and, therefore, possessed it prior to the traffic 

stop. 

{¶19} We reject Bostwick’s second argument because the circumstantial evidence 

shows Bostwick’s intent for possessing ether. “Generally, the intent of a person cannot 

be proven by direct evidence, thus proof of intent may be shown from circumstantial 

evidence.” State v. Cole, Seneca App. No. 13-10-30, 2011-Ohio-409, at ¶23, citing 

State v. Lott (1990), 51 Ohio St.3d 160, 168. Here, Bostwick possessed items 
Scioto App. No. 10CA3382 8 

associated with the Nazi method of methamphetamine production. Therefore, the jury 

could have reasonably inferred that Bostwick possessed ether because he intended to 

use that ether in the production of methamphetamines. 

{¶20} For the foregoing reasons, we find substantial evidence upon which the jury 

could have reasonably concluded that Bostwick’s guilt had been proven beyond a 

reasonable doubt. Furthermore, because Bostwick’s conviction is not against the 

manifest weight of the evidence, we find that sufficient evidence also supports his 

conviction. See Leslie at ¶¶15, 23. 

{¶21} Accordingly, we overrule Bostwick’s first assignment of error. 

III. 

{¶22} In his second assignment of error, Bostwick argues that his trial counsel 

should have filed a motion to suppress the evidence obtained from Bostwick’s truck. 

Because his trial counsel failed to do so, Bostwick contends that he received ineffective 

assistance of counsel. 

{¶23} “In Ohio, a properly licensed attorney is presumed competent and the 

appellant bears the burden to establish counsel’s ineffectiveness.” State v. Norman, 

Ross App. Nos. 08CA3059 & 08CA3066, 2009-Ohio-5458, at ¶65 (internal quotations 

omitted); see, also, State v. Wright, Washington App. No. 00CA39, 2001-Ohio-2473; 

State v. Hamblin (1988), 37 Ohio St.3d 153, 155-56, cert. den. Hamblin v. Ohio (1988) 

488 U.S. 975. To secure reversal for the ineffective assistance of counsel, one must 

show two things: (1) “that counsel’s performance was deficient * * *[,]” which “requires 

showing that counsel made errors so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment[;]” and (2) “that the 
Scioto App. No. 10CA3382 9 

deficient performance prejudiced the defense * * *[,]” which “requires showing that 

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose 

result is reliable.” Strickland v. Washington (1984), 466 U.S. 668, 687. See, also, 

Norman at ¶65. “Failure to satisfy either prong is fatal as the accused’s burden requires 

proof of both elements.” State v. Hall, Adams App. No. 07CA837, 2007-Ohio-6091, at 

¶11 (citation omitted). 

{¶24} “Failing to file a motion to suppress does not constitute ineffective assistance 

of counsel per se.” State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, at ¶65, citing 

State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448. The Supreme Court of Ohio 

has “rejected claims of ineffective counsel when counsel failed to file or withdrew a 

suppression motion when doing so was a tactical decision, there was no reasonable 

probability of success, or there was no prejudice to the defendant.” State v. Nields, 93 

Ohio St.3d 6, 34, 2001-Ohio-1291 (citations omitted). Furthermore, “[t]o establish 

ineffective assistance of counsel for failure to file a motion to suppress, a defendant 

must prove that there was a basis to suppress the evidence in question.” Brown at ¶65, 

citing State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, at ¶35. 

{¶25} Because Trooper Lewis had probable cause to search Bostwick’s truck, we 

find that a motion to suppress would have failed. “Once a law enforcement officer has 

probable cause to believe that a vehicle contains contraband, he or she may search a 

validly stopped motor vehicle based upon the well-established automobile exception to 

the warrant requirement.” State v. Moore, 90 Ohio St.3d 47, 51, 2000-Ohio-10. See, 

also, Pennsylvania v. Labron (1996), 518 U.S. 938, 940 (“If a car is readily mobile and 

probable cause exists to believe it contains contraband, the Fourth Amendment thus 
Scioto App. No. 10CA3382 10 

permits police to search the vehicle without more.”). “Probable cause exists when there 

is a ‘fair probability that contraband or evidence of a crime will be found in a particular 

place.’” State v. Evans, Montgomery App. No. 20794, 2006-Ohio-1425, at ¶33, quoting 

Illinois v. Gates (1983), 462 U.S. 213, 238. 

{¶26} Here, Trooper Lewis clearly had probable cause to search Bostwick’s motor 

vehicle. After placing Bostwick in the cruiser, Trooper Lewis returned to Bostwick’s 

vehicle and found a syringe “between the door and cab of the truck[.]” Transcript at 27. 

Trooper Lewis testified that the syringe was not there when he first approached 

Bostwick’s vehicle. Instead, Trooper Lewis believed that the syringe fell from inside the 

truck. As Trooper Lewis testified: 

{¶27} “Q. Now had that syringe been at that location when you first approached 

that vehicle? 

{¶28} “A. No. No, it was basically in a spot where I would have had to step on it.” 

Id. 

{¶29} Thus, the evidence demonstrates that the syringe came from Bostwick’s 

truck. Furthermore, Trooper Lewis testified that, based on his experience, “syringes are 

common with drug abuse around [that] area.” Id. As a result, we find that the discovery 

of the syringe established probable cause for Trooper Lewis to search Bostwick’s motor 

vehicle. See, generally, Wyoming v. Houghton (1999), 526 U.S. 295, 297-98 (Police 

searched a vehicle after finding a “hypodermic syringe” in the driver’s pocket.); State v. 

Wilson, Clinton App. No. CA2006-03-008, 2007-Ohio-353, at ¶35 (Police could have 

obtained a search warrant based on evidence of an “anhydrous ammonia odor and * * * 

syringes on the bathroom floor.”). 
Scioto App. No. 10CA3382 11 

{¶30} Because there was probable cause to search Bostwick’s truck, any potential 

motion to suppress would have failed. Therefore, the failure to file a motion to suppress 

did not constitute ineffective assistance of counsel. 

{¶31} Accordingly, we overrule Bostwick’s second assignment of error. Having 

overruled both assignments of error, we affirm the judgment of the trial court. 

JUDGMENT AFFIRMED. 
Scioto App. No. 10CA3382 12 

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs 

herein taxed. 

The Court finds there were reasonable grounds for this appeal. 

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

Scioto County Common Pleas Court to carry this judgment into execution. 

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

27 of the Rules of Appellate Procedure. Exceptions. 

 Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion. 

For the Court 

 

 

 BY:_____________________________ 

 Roger L. Kline, 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.