[Cite as State v. Tingler, 2023-Ohio-834.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vsTODD ALLEN TINGLER

Defendant-Appellant

JUDGES:

: Hon. W. Scott Gwin, P.J.

: Hon. John W. Wise, J.

: Hon. Andrew J. King, J.

:

:

: Case No. 2022 CA00084

:

:

: OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County 

Court of Common Pleas, Case No. 2021 

CR 0790

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 16, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE STONE D. COLEMAN BOND

Stark County Prosecutor 116 Cleveland Aven. N.W.

BY: TIMOTHY E. YAHNER Suite 600

Assistant Prosecutor Canton, OH 44702

110 Central Plaza South, Ste. 510

Canton, OH 44702
Gwin, P.J.

{¶1} Defendant-appellant Todd Allen Tingler [“Tingler”] appeals his conviction 

and sentence after a jury trial in the Stark County Court of Common Pleas.

Facts and Procedural History

{¶2} On April 5, 2021, North Canton police department Sergeant Shawn Bates 

received a call from dispatch concerning two people in a red car doing drugs in an Acme 

grocery store parking lot. Sergeant Bates responded to the scene, and approached the 

suspect vehicle, with his Body camera recording. State's Exhibit 1. He observed the 

driver, Tingler, inject his right arm with a syringe. Sergeant Bates asked Tingler what was 

in the needle. Tingler admitted that it was heroin. 

{¶3} Sergeant Bates asked the female passenger and Tingler for their 

identification. Tingler could not locate his identification. Sergeant Bates ordered Tingler 

out of the vehicle, and began to search him. During the pat-down, Sergeant Bates found 

a folded-up lottery ticket in Tingler's left front pants pocket. Sergeant Bates observed an 

off-white powder inside the folded lottery ticket. State's Exhibit 2. Tingler told Sergeant 

Bates the folded lottery ticket contained coffee creamer. 

{¶4} The North Canton police department does not field test suspected drugs. 

Sergeant Bates took the powder and the syringe back to the police station, where the 

items were packaged for the Stark County Crime Laboratory. State's Exhibit 3. Sergeant

Bates secured the items in the police department's property room, until evidence officers 

transported them to the crime lab for testing. 

{¶5} At the Stark County Crime Laboratory, forensic scientist Alexis Kimble

analyzed the evidence submitted to the laboratory to determine whether narcotics were
present. She weighed and tested the powder and found it weighed 2.53 grams. State’s 

Exhibit 4. Kimble tested approximately .02 grams of the substance, and was “100 percent 

sure" it was “fentanyl.” Ms. Kimble testified at trial that under the law “we just have to 

determine that a small part of it, any mixture, compound, preparation of that is considered 

the whole weight of, of the substance is considered to be fentanyl.” T. at 112. Ms. Kimble 

testified that she did not test the substance to determine if it contained baking soda or 

coffee creamer.

{¶6} Tingler testified that on the morning of April 5, 2021, he was staying at a 

hotel but did not have money to stay an additional night, so he took some of the coffee 

creamer that was in the waiting room on his way out. Tingler testified that he did not have 

his coffee yet and did not have anything else to put the coffee creamer into, so he poured 

it into a lottery ticket and folded it up in his pocket. Tingler testified that the couple stopped 

at a gas station and his girlfriend went inside and bought him a cup of coffee. T. at 132. 

Tingler testified that the couple then drove to the Acme parking lot to get things together 

and figure out what they were going to do and go from there. T. at 131.

{¶7} Tingler admitted that he was using heroin as could be seen in the body 

camera video but was denying that the substance in the lottery ticket was fentanyl. 

Instead, he testified that the substance was coffee creamer. Tingler testified that he could 

be seen drinking coffee in the body camera video before the officer came to his window. 

Tingler testified that he was not denying that he was using drugs, but simply was disputing 

the amount of drugs that he possessed, and that there was fentanyl in the coffee creamer. 

Tingler also testified that he does not carry heroin or fentanyl in folded paper and instead 

always uses a baggy, because the drugs will harden up if they are in paper. 
{¶8} The jury found Tingler guilty of possession of a fentanyl-related

compound, and further found that the amount of the fentanyl-related compound equaled

or exceeded one gram, but was less than five grams. The trial judge sentenced Tingler

to 18 months in prison with consideration for judicial release into the Stark County 

Regional Correction Center after 12 months.

Assignments of Error

{¶9} Tingler raises two Assignments of Error,

{¶10} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO 

SUSTAIN A CONVICTION AGAINST APPELLANT, AND THE CONVICTION MUST BE 

REVERSED.

{¶11} “II. THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.”

I & II

{¶12} In his First Assignment of Error, Tingler argues that there is insufficient 

evidence to support his conviction. In his Second Assignment of Error, Tingler maintains 

that his conviction is against the manifest weight of the evidence. 

Standard of Appellate Review– Sufficiency of the Evidence.

{¶13} The Sixth Amendment provides, “In all criminal prosecutions, the accused 

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in 

conjunction with the Due Process Clause, requires that each of the material elements of 

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570 

U.S. 99, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 577 U.S. 92, 

136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence 
involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio 

St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the 

elements of the charged offense and a review of the state's evidence.” State v. 

Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.

{¶14} When reviewing the sufficiency of the evidence, an appellate court does not 

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574 

N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional 

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4, 

684 N.E.2d 668 (1997); Walker, 150 Ohio St.3d at ¶30. “The relevant inquiry is whether, 

after viewing the evidence in the 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.” Jenks at paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474, 

2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do 

not second-guess the jury's credibility determinations; rather, we ask whether, ‘if believed, 

[the evidence] would convince the average mind of the defendant's guilt beyond a 

reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), 

quoting Jenks at paragraph two of the syllabus; Walker 150 Ohio St.3d at ¶31. We will 

not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could 

not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d 

70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 

430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio5487, 71 N.E.3d 180, ¶74.
Issue for Appellate Review: Whether, after viewing the evidence in the light most 

favorable to the prosecution, the evidence, if believed, would convince the average mind 

that Tingler was guilty beyond a reasonable doubt of possession of a fentanyl-related 

compound, in an amount equaling or exceeding one gram, but less than five grams

{¶15} Tingler admits he possessed fentanyl, which he believed to have been 

heroin; however, Tingler denies that he possessed 2.53 grams of fentanyl. [Appellant’s 

brief at 9]. Tingler argues that it is possible that Sergeant Bates contaminated a portion 

of the coffee creamer seized from Tingler with the syringe seized from Tingler that he had 

used to inject heroin moments before his arrest.

{¶16} In Gonzales II, the Supreme Court held,

We now hold that the entire “compound, mixture, preparation, or 

substance,” including any fillers that are part of the usable drug, must be 

considered for the purpose of determining the appropriate penalty for 

cocaine possession under R.C. 2925.11(C)(4).

{¶17} 150 Ohio St.3d 276, ¶ 3. Further, in State v. Pendleton, the defendant was 

found to have 133.62 grams of heroin and fentanyl. 163 Ohio St.3d 114, 2020-Ohio-6833, 

168 N.E.3d 458, ¶ 1-2. Pendleton was later convicted and sentenced “on a first-degreefelony conviction for trafficking in 133.62 grams of heroin” and “on a second-degree-felony 

conviction for trafficking in 133.62 grams of fentanyl.” Id. at ¶ 1. The trial court found that

these two convictions should not “merge for purposes of sentencing,” concluding “that 

‘different drug groups constitute different offenses and are therefore not allied offenses of 

similar import.’” Id. at ¶ 3.
{¶18} On appeal, the Ohio Supreme Court determined that the application of 

Ohio’s multiple counts statute in R.C. 2941.25 was not necessary to resolve this issue 

and disposed of this case by relying only on the requirements of R.C. 2925.03. Pendleton

at ¶ 11-12. In applying R.C. 2925.03, the Ohio Supreme Court noted that,

The ability to prove the weight of the controlled substance from the entire 

usable mixture alleviated unreasonable evidentiary burdens, given that the 

fillers cannot be separated from the pure drug and the purity level of a drug 

may vary considerably. * * * By defining the crime in such a way that 

possessing a mixture is equivalent to possessing the pure drug, the General 

Assembly created a legal fiction that allowed us to presume that 100 percent 

of the mixture was [the prohibited drug] for purposes of establishing the 

weight of the drug.

{¶19} (Citations omitted.) Id. at ¶ 14, citing State v. Gonzales, 150 Ohio St.3d 276, 

2017-Ohio-777, 81 N.E.3d 419, ¶ 9. As evidenced by the Supreme Court’s decision in 

Pendleton, the state is not required to separate the controlled substance from the 

fillers and weigh only the pure drug.

{¶20} The state presented evidence that Tingler was in possession of a folded

lottery ticket containing a powder substance that tested positive for fentanyl. 

Testimony was presented that the syringe and the lottery ticket arrived at the crime 

lab in separate packaging. T. at 101-102. The syringe was capped. T. at 103. Each 

was tested preliminarily via a chemical color test. T. at 98. The evidence was then 

subjected to a gas chromatography mass spectrometry test. T. at 99. Tingler cites to 
nothing specific in the record to demonstrate that the Sergeant commingled or 

contaminated the evidence. 

{¶21} Viewing this evidence in a light most favorable to the prosecution, we 

conclude that a reasonable person could have found beyond a reasonable doubt that 

Tingler possessed a fentanyl-related compound as defined by R.C. 2925.11(C)(11) in an 

amount equaling or exceeding one gram, but less than five grams. We hold, therefore, 

that the state met its burden of production regarding each element of the crime and, 

accordingly, there was sufficient evidence to support Tingler’s conviction.

Standard of Appellate Review – Manifest Weight.

{¶22} As to the weight of the evidence, the issue is whether the jury created a 

manifest miscarriage of justice in resolving conflicting evidence, even though the 

evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387, 

678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as 

stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v. 

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001). 

{¶23} Weight of the evidence addresses the evidence's effect of inducing belief. 

State v. Thompkins, supra, 78 Ohio St.3d at 386-387, 678 N.E.2d 541(1997), State v. 

Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶83. When a court of 

appeals reverses a judgment of a trial court on the basis that the verdict is against the 

weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with 

the fact finder’s resolution of the conflicting testimony. Thompkins at 387, 678 N.E.2d 541, 

citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652(1982) (quotation 
marks omitted); State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1244, 

¶25, citing Thompkins.

{¶24} Once the reviewing court finishes its examination, an appellate court may 

not merely substitute its view for that of the jury, but must find that “‘the jury 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, supra, 78 Ohio St.3d at 387, 

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 

1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional 

case in which the evidence weighs heavily against the conviction.” Id. 

{¶25} Issue for Appellate Review: Whether the jury clearly lost their way and 

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

a new trial ordered. 

{¶26} The jury as the trier of fact was free to accept or reject any and all of the 

evidence offered by the parties and assess the witness’s credibility. “While the trier of 

fact may take note of the inconsistencies and resolve or discount them accordingly * * * 

such inconsistencies do not render defendant’s conviction against the manifest weight or 

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL 

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996 

WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’ 

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin 

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889, 

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although 
the evidence may have been circumstantial, we note that circumstantial evidence has the 

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574 

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional 

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4, 

684 N.E.2d 668 (1997).

{¶27} In the case at bar, the jury heard Sergeant Bates, Ms. Kimble and Tingler 

subjected to cross-examination. The jury saw the body camera footage. 

{¶28} We find that this is not an “‘exceptional case in which the evidence weighs 

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678 

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Upon review 

of the entire record, weighing the evidence and all reasonable inferences as a thirteenth 

juror, including considering the credibility of witnesses, we cannot reach the conclusion 

that the trier of facts lost its way and created a manifest miscarriage of justice. We do not 

find the jury erred when it found Tingler guilty. Taken as a whole, the testimony and 

record contains ample evidence of Tingler’s responsibility for the crime. The fact that the 

jury chose to believe the testimony of the state’s witnesses does not, in and of itself, 

render his conviction against the manifest weight of the evidence. While Tingler is 

certainly free to argue that he did not possess more than one gram but less than 5 grams 

of a fentanyl-related substance, on a full review of the record we cannot say that the jury 

clearly lost its way or created a manifest injustice. The state presented testimony and 

evidence from which the jury could have found all the essential elements of the offense 

proven beyond a reasonable doubt. 

{¶29} Tingler’s First and Second Assignments of Error are overruled.
{¶30} The judgment of the Stark County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Wise, J., and

King, J., concur