[Cite as State v. Reynolds, 2013-Ohio-5055.]

 

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO : 

: Appellate Case No. 25641 

Plaintiff-Appellee : 

: Trial Court Case No. 2012-CR-2889 

v. : 

: 

BILLY RAY REYNOLDS : (Criminal Appeal from 

: (Common Pleas Court) 

Defendant-Appellant : 

: 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 15th day of November, 2013. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by MATTHEW T. CRAWFORD, Atty. Reg. #0089205, Montgomery 

County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 

972, 301 West Third Street, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

 

LORI R. CICERO, Atty. Reg. #0079508, Cicero Law Office, LLC, 500 East Fifth Street, Dayton, 

Ohio 45402 

Attorney for Defendant-Appellant 

. . . . . . . . . . . . . 

HALL, J., 

{¶ 1} Billy Ray Reynolds appeals from his conviction and sentence following a jury 

trial on one count of abusing harmful intoxicants in violation of R.C. 2925.31(A), a fifth-degree 
felony. 

{¶ 2} In his sole assignment of error, Reynolds challenges the legal sufficiency and 

manifest weight of the evidence to support the conviction. 

{¶ 3} The charge against Reynolds involved sniffing or “huffing” paint. At trial, 

Trotwood police detective Jeremy Kinder testified about responding to a residence at 741 

Ellsworth Drive on a disorderly-conduct call involving Reynolds. Upon arriving, Kinder saw 

Reynolds’ cousin, Shawn Reynolds, standing in the driveway. Shawn led Kinder inside a garage 

and pointed out a can of spray paint on a shelf. (Trial Tr. Vol. II at 172). The can had holes in it 

and was dripping gold paint. (Id. at 174-175, 196). Kinder also noticed a “fairly strong” paint 

odor. (Id. at 176). The detective entered the residence and encountered Reynolds. Kinder 

described Reynolds’ demeanor as “calm” and “relaxed.” The detective did not notice any odor of 

alcohol on Reynolds, who was dressed in jeans with a coat and hat. Kinder recalled that Reynolds 

had duct tape wrapped around his ankles, wrists, and the cuffs of his pants. (Id. at 180). He 

noticed gold paint on Reynolds’ coat, hat, and hands. (Id. at 181). In particular, he saw paint on 

the front of the coat around the shoulders and chest area. (Id. at 188). He did not see any 

freshly-painted items inside the garage or house. (Id. at 187). On cross examination, Kinder 

acknowledged that he did not observe any paint on Reynolds’ mouth. (Id. at 192). He also did not 

find any bags of paint or rags with paint on them—items that might be indicative of someone 

“huffing” paint. (Id.). Kinder also acknowledged on cross examination that he did not specifically 

look for gold paint inside the house. (Id. at 199). 

{¶ 4} The next witness was Kimberly Delong, a Trotwood police officer. She also 

responded to the disorderly-conduct call to 741 Ellsworth Drive. When she arrived, she saw 

Reynolds being brought out in handcuffs. (Id. at 204). Delong observed paint on his hands and 
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hat. She also recalled seeing speckles of paint in his mustache. (Id. at 205-207). Delong testified 

that she picked up the can of spray paint at issue. When she did so, paint spilled from holes in the 

can. (Id. at 211-212). She tried to place the can in an air-tight container to prevent any accelerant 

from evaporating. Her effort failed, however, because the lids she had did not fit her air-tight 

container. (Id. at 213-214). As a result, she emptied the paint from the can the best she could 

and placed the can in a plastic bag. (Id. at 214). 

{¶ 5} The State’s third witness was Cedric Hollabaugh, a forensic chemist at the Miami 

Valley Regional Crime Laboratory. He testified that the spray can at issue could not be tested 

because of the holes in it. (Id. at 229). He stated that the only purpose for testing would have been 

to detect “harmful intoxicants” such as “volatile organic solvents.” (Id.). He explained that “once 

the spray can is punctured, any possibility of a volatile organic solvent still being present would 

have evaporated.” (Id.). Hollabaugh further explained that the volatile organic solvent he looks 

for when testing spray cans is a substance called “toluene.” (Id. at 230). After examining the 

subject paint can, he noted that the can listed its contents as including toluene. (Id. at 231). He 

proceeded to explain how toluene mixes with paint to allow it to be sprayed and then evaporates, 

leaving behind the paint. (Id.). On cross examination, Hollabaugh acknowledged that a harmful 

intoxicant like toluene would not have remained in the paint can very long after it was punctured. 

(Id. at 233). He also testified that he could not “conclude beyond a scientific certainty that there 

was a harmful intoxicant in [the paint can] on September 23rd[.]” (Id. at 235). On redirect 

examination, Hollabaugh added that he also could not say a harmful intoxicant was not in the 

paint can at the time in question. (Id.). He then provided the following explanation for not testing 

the can: 
[Cite as State v. Reynolds, 2013-Ohio-5055.]

When the spray can is punctured, the harmful intoxicants or volatile 

organic solvents evaporate. And they evaporate very quickly. So not knowing 

when this was punctured, if it was packaged correctly in an air tight container, I 

would have still analyzed it not knowing when it was punctured and how long it 

had been exposed to air. In this case it was packaged improperly, therefore, I did 

not analyze it. 

(Id. at 237). 

{¶ 6} The State’s next witness was Reynolds’ mother, America Reynolds. She testified 

that she went to the store with Shawn and left Reynolds home alone. (Id. at 248). She returned 

about an hour later and found him “messed up” and slurring his words. (Id. at 248-249). 

America asked her son whether he had been sniffing paint. Reynolds denied it, but she saw gold 

paint on his fingers and lips. (Id. at 249). America also noticed a paint smell that had not been 

present before she went shopping. (Id. at 250). She did not see anything in the house freshly 

painted. (Id.). America suspected that Reynolds had been sniffing paint, and she went to the 

garage to search for the can. Reynolds followed her and became angry when Shawn found the 

spray paint can at issue. (Id. at 253). According to America, Reynolds “got a little violent” and 

threatened Shawn, resulting in the disorderly-conduct call to the police. (Id.). America admitted 

that Reynolds had consumed “a couple beers” before she went to the store. She testified, 

however, that he was not intoxicated from alcohol. (Id. at 254). 

{¶ 7} Shawn Reynolds was the State’s final witness. He testified that defendant 

Reynolds did not appear to be under the influence of anything before the trip to the store. (Id. at 

268). Shawn recalled that Reynolds asked him to lock the door when he and America left. He 

found the request odd because Reynolds never had said that before. (Id. at 269). Upon returning 
5

home, Shawn smelled paint and determined that it was coming from the garage. (Id. at 270). He 

also noticed that Reynolds’ speech was slurred. (Id. at 271). Shawn then found the paint can, 

which began spilling when he picked it up. (Id. at 276). Defendant Reynolds became “very 

upset,” wanting him to put the can back. (Id. at 276-277). 

{¶ 8} For his part, Reynolds did not testify and presented no defense. The jury found 

him guilty of abusing harmful intoxicants. It also found that he had a prior conviction for the 

same offense, making the current charge a fifth-degree felony. 1 The trial court imposed an 

eight-month prison sentence. This appeal followed. 

{¶ 9} As noted above, Reynolds challenges the legal sufficiency and manifest weight of 

the evidence to support his conviction. He claims the State presented no evidence that he had 

been “huffing” paint, no evidence that the paint can contained a harmful intoxicant, and no 

evidence that he had a purpose to become intoxicated. Reynolds notes that the State’s expert, 

Cedric Hollabaugh, did not test the paint can. He also stresses the existence of testimony that he 

had consumed alcohol and that he was not caught with a paint can or with “huffing” 

paraphernalia such as a rag or bag. 

 1

At trial, several of the witnesses confirmed that Reynolds previously had been convicted of abusing harmful intoxicants. 

{¶ 10} When a defendant challenges the sufficiency of the evidence, he is arguing that 

the State presented inadequate evidence on an element of the offense to sustain the verdict as a 

matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000). “An 

appellate court’s function when reviewing the sufficiency of the evidence to support a criminal 

conviction is to examine the evidence admitted at trial to determine whether such evidence, if 

believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. 
6

The relevant inquiry is whether, after viewing the evidence in a light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime proven 

beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph 

two of the syllabus. 

{¶ 11} Our analysis is different when reviewing a manifest-weight argument. When a 

conviction is challenged on appeal as being against the weight of the evidence, an appellate court 

must review the entire record, weigh the evidence and all reasonable inferences, consider witness 

credibility, 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 ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 

678 N.E.2d 541. A judgment should be reversed as being against the manifest weight of the 

evidence “only in the exceptional case in which the evidence weighs heavily against the 

conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 

{¶ 12} With the foregoing standards in mind, we conclude that Reynolds’ conviction is 

supported by legally sufficient evidence and is not against the weight of the evidence. With 

exceptions not applicable here, the statute under which he was convicted, R.C. 2925.31(A), 

provides that “no person, with purpose to induce intoxication or similar physiological effects, 

shall obtain, possess, or use a harmful intoxicant.” Another provision, R.C. 2925.01(I), defines 

“harmful intoxicant” as including any volatile organic solvent or preparation containing a volatile 

organic solvent. 

{¶ 13} The State’s evidence supports a finding that Reynolds possessed or used a 

harmful intoxicant, namely the volatile organic solvent toluene, with a purpose to induce 
7

intoxication. Although Hollabaugh did not test the can of gold spray paint, he identified toulene 

as a volatile organic solvent, which the Revised Code classifies as a harmful intoxicant. He also 

explained how toluene mixes with paint to allow it to be sprayed and then evaporates, leaving 

behind the paint. Finally, Hollabaugh testified that the paint can found in the garage at 741 

Ellsworth Drive listed its contents as including toulene. In light of Hollabaugh’s testimony, the 

jury reasonably could have found that the paint can contained toulene, a harmful intoxicant, at the 

time in question. 

{¶ 14} The jury also reasonably could have found that Reynolds possessed or used the 

paint can with a purpose to induce intoxication. A finding that Reynolds possessed or used the 

paint can is supported by (1) testimony about the discovery of a spray can of dripping gold paint 

in the garage, (2) testimony about a strong odor of paint being present, and (3) testimony that he 

was observed with gold paint on his clothing and body. A finding that Reynolds had a purpose to 

induce intoxication is supported by (1) testimony that he had gold paint on his mustache and lips, 

(2) testimony that no freshly painted items were observed, (3) testimony that he asked for the 

door to be locked when Shawn and America left, (4) testimony that he became angry and 

threatening when Shawn found the paint can, and (5) testimony that he was slurring his speech 

and appeared “messed up” when Shawn and America returned home. 

{¶ 15} Having reviewed the record, we find ample evidence to support Reynolds’ 

conviction for abusing harmful intoxicants in violation of R.C. 2925.31(A). The conviction is 

supported by legally sufficient evidence and is not against the manifest weight of the evidence. 

{¶ 16} The assignment of error is overruled, and the judgment of the Montgomery 

County Common Pleas Court is affirmed. 
8

. . . . . . . . . . . . . 

FAIN, P.J., and GALLAGHER, J., concur. 

(Hon. Eileen A. Gallagher, Eighth District Court of Appeals, sitting by assignment of the Chief 

Justice of the Supreme Court of Ohio). 

Copies mailed to: 

Mathias H. Heck 

Matthew T. Crawford 

Lori R. Cicero 

Hon. Mary K. Huffman