[Cite as State v. Clark, 2015-Ohio-5003.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

HIGHLAND COUNTY 

STATE OF OHIO, : 

 : Case No. 14CA20 

 Plaintiff-Appellee, : 

 : 

 vs. : DECISION AND JUDGMENT 

 : ENTRY 

DALLAS P. CLARK, : 

 : 

 Defendant-Appellant. : Released: 11/24/15 

_____________________________________________________________ 

APPEARANCES: 

Susan M. Zurface Daniels, Hillsboro, Ohio, for Appellant.1

Anneka Collins, Highland County Prosecuting Attorney, and James Roeder, 

Assistant Prosecuting Attorney, Hillsboro, Ohio, for Appellee. 

_____________________________________________________________ 

 

McFarland, A.J. 

{¶1} Dallas P. Clark appeals his conviction in the Highland County 

Court of Common Pleas after a jury found him guilty of one count of illegal 

assembly or possession of chemicals for the manufacture of drugs, a thirddegree felony. On appeal, Clark contends: (1) the trial court erred in 

denying his Rule 29 motion when the State presented no evidence of “intent 

to manufacture” methamphetamine; (2) his conviction was against the 

manifest weight of the evidence; (3) his conviction was based on insufficient 

 

1

 Attorney Daniels was granted leave to withdraw as counsel for Appellant on July 31, 2015. 
Highland App. No. 14CA20 2

evidence; and (4) his five year mandatory sentence pursuant to R.C. 

2925.041 was improper and invalid as a matter of law. Upon review, we 

find no merit to Appellant’s first three assignments of error. However, his 

fourth assignment of error regarding his five-year mandatory sentence has 

merit. Accordingly, we overrule Appellant’s first three assignments of error 

and remand the matter for resentencing in accordance with current Ohio law. 

FACTS 

{¶2} On September 9, 2014, Appellant Dallas P. Clark was indicted 

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

manufacture of drugs, a violation of R.C. 2925.041(A), a felony of the third 

degree. The indictment arose from activities which occurred on or about 

August 13, 2014 when officers executed a search warrant at 6172 Holaday 

Road in Highland County, and found various items used in the production of 

methamphetamine. Kevin Colville lived at the address. Appellant and 

Amanda Campanero, with whom he was romantically involved, also stayed 

there on occasion. Appellant, Colville, and Campanero were charged and 

arrested. 

{¶3} Appellant was tried on the sole count on November 13, 2014. 

The State presented testimony from the following individuals: Kelsey 

Degan, a forensic scientist employed by the Ohio Bureau of Criminal 
Highland App. No. 14CA20 3

Investigation (BCI); Detective Daniel Croy of the Highland County Sheriff’s 

Department; Detective Jennifer Swackhammer, Deputy Vinny Antinore, 

Detective Randy Sanders, and Detective Chris Bowen, all of the sheriff’s 

department. Co-defendant Kevin Colville testified on behalf of Appellant. 

Appellant also testified in his own defense. 

{¶4} In closing, the State argued that circumstantial evidence 

showed Appellant possessed pseudoephedrine and lithium, necessary 

chemicals in the manufacture of drugs, and that he possessed the items 

with the intent to manufacture drugs. The State pointed out Appellant 

purchased pseudoephedrine at least twice a month on average in the 

year 2014. The State emphasized Appellant knew Colville cooked 

methamphetamine. The State noted the room in which Appellant was 

located contained a majority of the items found for the manufacture of 

drugs. At the conclusion of the one-day trial, the jury returned a 

verdict of guilty. 

{¶5} This timely appeal followed. Where relevant, additional facts 

will be related below. 

ASSIGNMENTS OF ERROR 

“I. THE TRIAL COURT ERRED IN DENYING 

APPELLANT’S MOTION PURSUANT TO CRIM.R. 29(A) 

WHEN THE STATE PRESENTED NO EVIDENCE OF 

“INTENT TO MANUFACTURE” METHAMPHETAMINE, 
Highland App. No. 14CA20 4

WHICH IS AN ESSENTIAL ELEMENT OF THE CRIME OF 

ILLEGAL ASSEMBLY OR POSSESSION OF CHEMICALS 

FOR THE MANUFACTURE OF METHAMPHETAMINE 

PURSUANT TO R.C. 2925.041 OF THE OHIO REVISED 

CODE. 

II. APPELLANT’S CONVICTION FOR ILLEGAL 

ASSEMBLY OR POSSESSION OF CHEMICALS FOR THE 

MANUFACTURE OF METHAMPHETAMINE PURSUANT 

TO O.R.C. 2925.041 WAS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE. 

III. APPELLANT’S CONVICTION FOR ILLEGAL 

ASSEMBLY OR POSSESSION OF CHEMICALS FOR THE 

MANUFACTURE OF METHAMPHETAMINE PURSUANT 

TO O.R.C. 2925.O41 WAS BASED ON INSUFFICIENT 

EVIDENCE. 

IV. THE SENTENCING PROVISIONS OF 2925.041 OF THE 

OHIO REVISED CODE, WHEN READ IN PARI MATERIA 

WITH THE 2929.14 ARE IN CONFLICT WITH EACH 

OTHER, RENDERING A FIVE (5) YEAR MANDATORY 

SENTENCE PURSUANT TO 2925.041 IMPROPER AND 

INVALID AS A MATTER OF LAW.” 

{¶6} The arguments made in the first three assignments of error are 

interrelated. For ease of analysis, we begin with consideration of 

Appellant’s Assignment of Error Two. Appellant argues his conviction was 

against the manifest weight of the evidence. 

ASSIGNMENT OF ERROR TWO 

 

A. STANDARD OF REVIEW 

{¶7} When an appellate court considers a claim that a conviction is 
Highland App. No. 14CA20 5

against the manifest weight of the evidence, the court must dutifully 

examine the entire record, weigh the evidence, and consider the credibility 

of witnesses. The reviewing court must bear in mind however, that 

credibility generally is an issue for the trier of fact to resolve. State v. 

Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, ¶ 25; State v. 

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th 

Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. “ ‘Because the trier of 

fact sees and hears the witnesses and is particularly competent to decide 

“whether, and to what extent, to credit the testimony of particular 

witnesses,” we must afford substantial deference to its determinations of 

credibility.’ ” Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 

N.E.2d 1047, ¶ 20, quoting State v. Konya, 2nd Dist. Montgomery No. 

21434, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson, 2nd Dist. 

Montgomery No. 16288 (Aug. 22, 1997). As explained in Eastley v. 

Volkman,132 Ohio St.3d 328, 972 N.E.2d 517: 

“ ‘[I]n determining whether the judgment below is manifestly 

against the weight of the evidence, every reasonable intendment 

must be made in favor of the judgment and the finding of facts. 

* * * 

If the evidence is susceptible of more than one construction, the 

reviewing court is bound to give it that interpretation which is 

consistent with the verdict and judgment, most favorable to 

sustaining the verdict and judgment.’ ” 
Highland App. No. 14CA20 6

{¶8} Eastley at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland,

 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio 

Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978). Thus, 

an appellate court will leave the issues of weight and credibility of the 

evidence to the fact finder, as long as a rational basis exists in the record for 

its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-

Ohio-1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No. 07CA2948, 

2007-Ohio-6331, ¶ 6 (“We will not intercede as long as the trier of fact has 

some factual and rational basis for its determination of credibility and 

weight.”). 

{¶9} Once the reviewing court finishes its examination, the court may 

reverse the judgment of conviction only if it appears that the fact-finder, 

when resolving the conflicts in evidence, “ ‘clearly lost its way and created 

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

and a new trial ordered .’ ” Wickersham, supra, at 26, quoting Thompkins, 

78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 

N.E.2d 717 (1st Dist. 1983). A reviewing court should find a conviction 

against the manifest weight of the evidence only in the “ ‘exceptional case in 

which the evidence weighs heavily against the conviction.’ “ Id., quoting 
Highland App. No. 14CA20 7

Martin, 20 Ohio App.3d at 175; State v. Lindsey, 87 Ohio St.3d 479, 483, 

721 N.E.2d 995 (2000). 

B. LEGAL ANALYSIS 

{¶10} Appellant was 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.” 

{¶11} R.C. 2925.04 states: 

“(A) No person shall knowingly cultivate marihuana or 

knowingly manufacture or otherwise engage in any part of the 

production of a controlled substance.” 

{¶12} Appellant contends the State failed to present any evidence of 

“intent to manufacture.” Appellant points out the “intent to manufacture a 

controlled substance” is not defined in the Ohio Revised Code, and directs 

us to cases from the Eighth, Ninth, and Eleventh appellate districts which 

have analyzed what constitutes proof of this particular element. 

{¶13} Appellee responds that the facts and testimony of various 

witnesses provide evidence from which a reasonable juror could infer 

Appellant held the intent to manufacture. Appellee points out Appellant was 

present in a residence where a search warrant had recently been executed for 
Highland App. No. 14CA20 8

illegal manufacture of methamphetamine. The prior warrant was executed 

within a month of Appellant’s own arrest, at the same house, for the same 

crime. Appellee points out the home and property contained various other 

items for the production of methamphetamine. Appellee also points to 

Appellant’s history of purchasing an inordinate amount of pseudoephedrine. 

Finally, Appellee emphasizes the room in which Appellant and his girlfriend 

stayed was found to have many of the items also offered as evidence for the 

production of methamphetamine. 

{¶14} We begin by noting that R.C. 2925.041(B) further 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.” 

{¶15} Appellant’s trial began with testimony from Kelsey 

Degan of BCI. The trial court declared her to be an expert in 

substance identification and measuring. She identified the following: 

1) States’ Exhibit 1, a copy of a lab report she prepared in 

Appellant’s case. Degan testified she received evidence from 

Detective Swackhammer on August 21, 2014. 

2) State’s Exhibit 2, a manila envelope containing a white 

substance discovered to contain methamphetamine. Degan 

emphasized she followed all procedures and that she could say 
Highland App. No. 14CA20 9

beyond a reasonable degree of scientific certainty that the 

substance in the manila envelope was methamphetamine. 

3) State’s Exhibit 27, twenty white tablets containing 

pseudoephedrine, which she had tested and analyzed. She 

again testified beyond a reasonable degree of scientific certainty 

that the tablets were pseudoephedrine. 

 

Degan testified after she analyzed the evidence she sealed it up to be 

returned. Degan also testified it is not a standard operating procedure to test 

for DNA on drugs. On cross-examination, the defense emphasized that there 

was no DNA link between Appellant and the methamphetamine confiscated. 

{¶16} Detective Daniel Croy testified one of his duties is maintaining 

the evidence room at the Highland County Sheriff’s Department. He and 

Detective Swackhammer testified to the chain of custody for State’s Exhibits 

2 and 27. Detective Jennifer Swackhammer testified she transported 

Exhibits 2 and 27 to BCI and also returned them to the evidence room. 

{¶17} Detective Vinny Antinore testified he has been employed by 

the sheriff’s office for nearly three years. Primarily, his duty is to dispatch. 

However, on August 13, 2014, he assisted other officers on execution of a 

search warrant on Holaday Road. He identified Appellant for the jury. 

Deputy Antinore testified when he first saw Appellant at the scene, he was 

being escorted out of the home onto the front porch. Deputy Antinore 

noticed Appellant had something in his hand he was attempting to conceal. 
Highland App. No. 14CA20 10

Later, after Appellant was removed from the porch, the item recovered was a 

clear bag with a white powdery substance. The bag was located on the 

porch, directly under where Appellant had been seated. Deputy Antinore 

identified State’s Exhibit 2 as the item that had been recovered by Sergeant 

Bowen, from where Appellant had been sitting. 

{¶18} On cross-examination, Deputy Antinore acknowledged he had 

not consistently assisted with search warrants during his three years of 

employment. He first saw Appellant with Sergeant Seaman. Deputy 

Antinore testified he did not advise Sergeant Seaman he saw Appellant 

holding something in his hand. Deputy Antinore further testified he never 

approached Appellant and attempted to retrieve the item in his hand. After 

Appellant was removed from the porch, he advised Sergeant Bowen he 

observed something in Appellant’s hand. Then he walked over and saw the 

item on the porch. On redirect, Deputy Antinore testified he didn’t alert 

anyone about the item in Appellant’s hand immediately because he was 

fearful if Appellant was aware of the information, he would throw the item 

and the officers would never find it. 

{¶19} The next witness was Detective Randy Sanders. Detective 

Sanders testified to his experience and training identifying and dismantling 

methamphetamine labs. Detective Sanders testified as to the process of 
Highland App. No. 14CA20 11

manufacturing methamphetamine. He also testified he was present when the 

warrant was executed at Holaday Road on August 13, 2104. He identified 

Appellant. 

{¶20} Detective Sanders testified Appellant had been staying at the 

Holaday Road residence because he saw him there on July 23, 2014 when he 

drove by. On August 13, 2014, when the warrant was executed, Detective 

Sanders searched Kevin Colville’s bedroom and the garage. Inside the 

garage he found numerous items inside a bag, including ammonium nitrate 

pellets out of a cold pack, a torn up lithium battery, a Hamilton Beach 

blender, a bottle of lye, drain cleaner, crystal drain opener. Detective 

Sanders identified State’s Exhibit 20, the bag he found in the garage 

containing the above-described items. Detective Sanders testified each of 

the items can be used in the production of methamphetamine. Detective 

Sanders testified the significance of the blender is that it is commonly used 

to grind the pseudoephedrine pills. Detective Sanders identified various 

other photographs of items discovered on August 13, 2014. 

{¶21} On cross-examination, Detective Sanders acknowledged 

Appellant was in a romantic relationship with Amanda Campanero and she 

stayed at the residence as well. Detective Sanders testified he did not 

observe Appellant with a bag in his hand while Appellant was sitting on the 
Highland App. No. 14CA20 12

porch. He testified Amanda Campanero, Kevin Colville, Appellant, and 

others were also sitting on the porch at that time. Detective Sanders further 

admitted he did not see Appellant have any contact with the bag found in the 

garage containing the various items. He testified he had no evidence 

Appellant purchased the blender or used the blender. 

{¶22} On redirect, Detective Sanders testified the house was set up to 

make methamphetamine. The Hamilton Beach blender box was found in the 

bedroom where Appellant and Campanero stayed. 

{¶23} The State’s final witness was Detective Chris Bowen. He also 

testified as to his responsibility for identifying and dismantling 

methamphetamine labs. He went to the Holaday Road residence to execute 

the search warrant on August 13, 2014. When he arrived he saw Kevin 

Colville in the kitchen. He later checked Appellant’s bedroom. Inside the 

room he found pseudoephedrine, pseudoephedrine receipts, lithium batteries 

and personal property belonging to Appellant and Amanda Campanero. He 

also found miscellaneous personal items. He testified he found a plastic tote 

inside Appellant’s bedroom which contained coffee filters, the blender box, 

and a Folger’s coffee container. He reiterated the blender was found outside 

in the garage with white residue in it. He also found crushed Sudafed pills. 

Detective Bowen identified the following exhibits: 
Highland App. No. 14CA20 13

1) State’s Exhibit 7, a photograph taken of two blister packs 

that contained pseudoephedrine laying on top of the dresser. 

2) State’s Exhibit 8, a photograph of a Wal-Mart bag in the 

bedroom hanging off the dresser which contained an empty box 

of pseudoephedrine. 

3) State’s Exhibit 10, a third receipt of pseudoephedrine 

purchase, dated August 12, 2014, from Kroger in Hillsboro. 

4) State’s Exhibit 11, a photograph showing an overview of the 

items on the dresser; an RX bag that contained a full box of 

pseudoephedrine that had six pills in it; and two blister packs 

containing 20 pseudoephedrine pills. He also explained 

pseudoephedrine is an active ingredient in the production of 

methamphetamine. 

5) State’s Exhibit 13, a photograph of items he found on top of 

the dresser in the bedroom. The photograph showed lithium 

batteries wrapped in a paper towel and part of a blister pack 

beside the pseudoephedrine pills. 

 

6) State’s Exhibit 14, two lithium batteries. He added lithium 

metal is an active ingredient needed to produce 

methamphetamine. 

7) State’s Exhibit 27, two blister packs that contained twenty 

pseudoephedrine pills found on top of the dresser. 

 

{¶24} Detective Bowen testified that the items depicted in State’s 

Exhibits 7, 8, 10, 11, 13, and 14 were all found in Appellant’s bedroom. He 

collected the pseudoephedrine tablets, placed them in an evidence bag, and 

eventually took them to an evidence locker in the sheriff’s office. 
Highland App. No. 14CA20 14

{¶25} Detective Bowen testified he located two receipts inside the 

bedroom.2 A receipt dated August 11, 2014 from Kroger appeared to be 

inside Amanda Campanero’s purse. A receipt on top of the dresser dated 

August 12, 2014 was a purchase of pseudoephedrine made by Appellant. 

Bowen searched the rest of the residence and eventually went to the front 

porch. Bowen also identified State’s Exhibit 27, the evidence bag with 

methamphetamine from the porch which he transported to the evidence 

locker on August 13, 2014. 

{¶26} On cross-examination, Detective Bowen admitted that the 

August 12, 2014 receipt, attached to the bag, contained the pills in an 

unopened box. He acknowledged the pills had never been used to 

manufacture. He also acknowledged Exhibit 27, the two blister packs 

located on top of the dresser, had only nineteen pills because BCI tested one. 

He testified a discarded pseudoephedrine box was inside the Wal-Mart bag 

hanging on the dresser. He admitted that he did not know if the pills had 

come from Amanda Campanero’s purchase or if they had been there for 

months. He also testified he did not know whether the pills had been used in 

the manufacture of methamphetamine. 

 

2

 Bowen testified regarding a computer program his office has in which one can track the purchase of 

pseudoephedrine. The information is accessible to law enforcement. A person can log on, look up a 

receipt, and see specifically who made the purchase. Bowen used this technology to track the two receipts 

in Appellant’s bedroom. The name of this computer program was not correctly spelled when identified in 

the transcript. 
Highland App. No. 14CA20 15

{¶27} Detective Bowen further testified that no lithium had been 

extracted from the batteries. He acknowledged batteries may be used for 

lawful purposes and it is common for people to have batteries in their 

homes. He admitted he did not know who brought the batteries to the trailer. 

He admitted it was legal to purchase pseudoephedrine up to a certain amount 

each month. 

{¶28} Detective Bowen testified Appellant’s ID cards were on top of 

the dresser. He admitted other than the receipt tracing a single Sudafed 

purchase to Appellant, there was no other evidence that Appellant purchased 

any of the other items, brought them to the residence, or exercised control 

over them. He testified there was no active cook going on. 

{¶29} Detective Bowen testified he escorted Appellant, Ms. 

Campanero, and another person from the bedroom to the porch. He didn’t 

observe anything in Appellant’s had. Deputy Antinore advised that he found 

a baggy where Appellant was seated on the porch after he left. Detective 

Bowen collected it. 

{¶30} On redirect, Detective Bowen identified Exhibit 32, 

Appellant’s purchase history. Appellant had purchased pseudoephedrine, or 

attempted to purchase it, 15 times in 8 months. At this point, the State asked 

for the relevant exhibits to be admitted and rested. 
Highland App. No. 14CA20 16

{¶31} Appellant’s counsel then made a Rule 29 motion for acquittal. 

Counsel argued there was no evidence of intent to manufacture 

methamphetamine. Counsel pointed out the only item the State could prove 

was in Appellant’s possession was the Sudafed purchased the day before. 

Furthermore, the Sudafed box was completely intact and had never been 

used for any purpose. Counsel argued Appellant had to have some 

conscious awareness that the other items of manufacture existed and he had 

to have taken some step towards completion of the manufacture of drugs. 

The State responded that Appellant was near the finished product and had 

receipts for the purchase. Appellant was discovered in the bedroom where 

his personal belongings were and he had been residing, with all the 

chemicals to make methamphetamine. The trial court overruled Appellant’s 

motion. 

{¶32} The defense case began with the testimony of Kevin Colville. 

He testified he rented the Holaday Road residence on August 13, 2014. He 

acknowledged he was currently serving a prison term after pleading to two 

charges of possession of chemicals for the manufacture of 

methamphetamine. 

{¶33} Colville testified on August 13, 2014, he and Appellant had 

worked on the transmission of Appellant’s truck. Appellant and Campanero 
Highland App. No. 14CA20 17

occasionally stayed in a bedroom at Colville’s residence that was used for 

storage. Other people occasionally stayed overnight in that bedroom. 

Appellant had stayed more since his truck was broken. 

{¶34} When the officers arrived, Colville was in the kitchen. 

Appellant and Campanero were in one of the bedrooms. Colville was taken 

out to the porch. Colville admitted he was the person engaged in the 

manufacture of methamphetamine as his residence. He testified that 

Appellant had never purchased chemicals to be used in the production of 

methamphetamine. Colville denied that Appellant provided the various 

items located at the residence, which included Damp-Rid, crystal Drano, 

lighter fluid, and pseudoephedrine. He wrote a letter from prison to let 

everyone know Appellant should not be blamed for his mistakes. 

{¶35} On-cross-examination, Colville admitted he told Appellant he 

would “do anything to try to help him get out of [this]because it’s not his 

fault.” He admitted that he and Appellant had been communicating through 

letters and family members. He denied Appellant cooked meth with him. 

He admitted Appellant was at his residence on July 23, 2014 when the 

officers were previously there. 

{¶36} Finally, Appellant testified. He gave his residence as a location 

in Peebles, Ohio. He admitted he moved around and sometimes stayed at 
Highland App. No. 14CA20 18

Colville’s residence. Appellant testified on August 13, 2014, at the Holaday 

Road residence, he was present with Amanda Campanero, Kevin Colville, 

and 4 others. He said he had been chauffeuring people around all day, 

traveling to and from a parts store, and working on his truck. When the 

police arrived, he was in Mr. Colville’s daughter’s bedroom off the kitchen. 

He had stayed there from time to time. 

{¶37} Appellant testified Detective Bowen and another officer 

brought them out. A third officer on the porch was keeping them in the area. 

Five people on the porch were lined up close together. Appellant testified he 

“made a scene”, accusing someone else of setting them up. Therefore, he 

was taken to a patrol car. 

{¶38} Appellant testified he did purchase Sudafed the day before. He 

was planning to give it to his girlfriend to trade for methamphetamine. He 

admitted he had a prior conviction for assembling chemicals. He admitted 

he used methamphetamine on August 13, 2014. Appellant specifically 

denied: 

1) Bringing Damper-Rid to the residence, opening it, or using 

it; 

2) Bringing Sudafed to the house; 

3) Possessing crystal Drano, using it, or knowing it was present 

in the residence; 
Highland App. No. 14CA20 19

4) Being aware of the presence of the bottle of lighter fluid; 

5) Creating any solvents; 

6) Manufacturing methamphetamine; 

7) Participating in the use or discarding of the previous meth 

 lab; and, 

8) Collaborating with Kevin Colville. 

{¶39} On cross-examination, Appellant reiterated nobody was 

making meth. He knew that Colville cooked meth and had a meth lab at his 

house a few months prior. His pseudoephedrine was in the house, in 

Campanero’s purse next to his ID. He testified he was aware 

pseudoephedrine is a necessary item to make meth. 

{¶40} As we begin our analysis, Appellant has directed us to State v. 

Seldon, 8th Dist. Cuyahoga No. 98429, 2013-Ohio-819, where the defendant 

was charged with one count of assembly or possession of chemicals used for 

the manufacture of drugs and one count of carrying a concealed weapon 

subsequent to a lawful traffic stop. Seldon was driving his friend’s truck and 

two others were riding with him. Pursuant to the stop, troopers located 

various items which can be used in the manufacture of a controlled 

substance. At trial, Seldon’s father testified his son was going to look for 

work in the area at the time of his stop. Seldon testified some of the items in 

the truck were purchased by him that day for the purpose of work on 
Highland App. No. 14CA20 20

damaged or inoperable vehicles. He testified, in particular, to having 

matchbooks because he stamped them to advertise his services. He admitted 

24 Sudafed pills were his, but a package of 96, and some starting fluid, were 

not his. He testified to having iodine in the vehicle to treat sores on his arm. 

{¶41} Seldon further acknowledged trying methamphetamine, but 

testified it was years before, not one week before as a trooper had previously 

testified. He denied that the items in the truck were purchased for the 

purpose of illegally manufacturing methamphetamine. He also denied 

knowing how to manufacture methamphetamine or having done so in the 

past. Although the jury returned a guilty verdict, the appellate court held the 

state failed to prove by sufficient evidence that Seldon possessed the 

chemicals discovered with an intent to manufacture methamphetamine. The 

eighth district appellate court held at ¶ 21: 

“Under the clear requirements of R.C. 2925.041(A), the mere 

assembly or possession of chemicals that could be used to 

produce a controlled substance is not sufficient to prove the 

performance of the criminal act. State v. Cumberledge, 11th 

Dist. No. 2010-L-142, 2012-Ohio-3012. In addition to 

possessing the chemical, the state must further demonstrate a 

present intent on the part of the defendant to actually use the 

chemical in the future to produce the illegal drug. Id. 

* * * 

In most instances, proof of this intent will likely be based upon 

the defendant's completion of a subsequent act, such as an 

initial step in the manufacturing process.” Seldon, supra.
Highland App. No. 14CA20 21

{¶42} The eighth district court noted the only evidence of 

Seldon’s intent to manufacture was: 

1) His possession of the confiscated chemicals; 

2) Testimony from an agent that the chemicals were used in the 

red phosphorous method of cooking methamphetamine; 

3) Testimony from another agent that based on the location, 

quantity, and combination, the seized products could be used to 

manufacture methamphetamine; 

4) The fact the canine alerted to a narcotic in the truck after the 

stop; and, 

5) Seldon’s admission that he had used methamphetamine in 

the past. Id. at 22.3

{¶43} Appellant herein argues there is no evidence of intent to 

manufacture. It is true that the State’s case against Appellant herein is 

largely circumstantial. It is well-established, however, that “a defendant 

may be convicted solely on the basis of circumstantial evidence.” State v. 

Wickersham,¶ 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 

 

3 Appellant also directs us to State v. Morlock, 20 N.E.3d 1212, 2014-Ohio- 4458, (9th Dist.) in 

which the ninth district appellate court held there was insufficient evidence to convict appellant for 

illegal manufacture of drugs and illegal assembly or possession of chemicals for the manufacture 

of drugs. However, our review of the case reveals its precise holding is that there was insufficient 

evidence to establish appellant committed the crimes on or about the date alleged. 
Highland App. No. 14CA20 22

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 (5th Ed. 1979) 221. 

{¶44} Furthermore, the case at bar involves circumstantial evidence 

of intent. “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-Ohio-2298, ¶ 41. But 

“persons are presumed to have intended the natural, reasonable and probable 

consequences of their voluntary acts.” Garner at 60. 

{¶45} By the end of the State’s case, the jury had heard evidence that: 

1) Detective Sanders has experience in identifying and 

dismantling methamphetamine labs. Appellant, Amanda 

Campanero, his girlfriend, and Kevin Colville were present at 

the Holaday Road residence when various items for the 
Highland App. No. 14CA20 23

manufacture of methamphetamine including ammonium nitrate 

pellets, a torn up lithium battery, a Hamilton Beach blender, a 

bottle of lye, a bottle of drain cleaner, and crystal Drano were 

located in the garage. Detective Sanders testified each of the 

items can be used in the production of methamphetamine. He 

also testified blenders are commonly used to grind 

pseudoephedrine pills for such purpose. He testified the 

residence was set up to make methamphetamine. 

2) Detective Bowen also has experience in identifying and 

dismantling meth labs. In Appellant’s bedroom he found 

pseudoephedrine, pseudoephedrine receipts, lithium batteries, 

and personal property of both Appellant and Amanda 

Campanero. He also found a plastic tote containing a Hamilton 

Beach blender box in the bedroom. He found lithium batteries 

wrapped in a paper towel on the dresser in the bedroom. He 

found two blister packs containing pseudoephedrine on top of 

the dresser. He explained that pseudoephedrine and lithium 

metal are active ingredients needed to produce 

methamphetamine. However, no active cook was going on 

when the officers arrived. 

3) Detective Bowen also found two receipts in the bedroom, 

one dated August 11, 2014 in Amanda Campanero’s purse, and 

one on top of the dresser dated August 12, 2014. The August 

12, 2014 receipt was for a purchase of pseudoephedrine made 

by Appellant. 

4) Exhibit 2, a white substance determined to be 

methamphetamine, and Exhibit 27, twenty white tablets 

containing pseudoephedrine, had been transferred to BCI for 

scientific testing and the chain of custody for the evidence had 

been preserved. 

5) Deputy Antinore testified State’s Exhibit 2 was a white 

powdery substance in a clear bag that he saw in Appellant’s 

hand. He did not report the clear bag to anyone at the time for 

fear that Appellant would discard it. The bag was later 

recovered by Detective Bowen from the area where Appellant 

had been sitting on the porch. 
Highland App. No. 14CA20 24

4) Detective Sanders testified Appellant had been staying at the 

Holaday Road residence because he saw him there on July 23, 

2014 and again on August 13, 2014. 

5) Detective Bowen testified Exhibit 27 was the 

pseudoephedrine he located on top of the dresser. 

6) Detective Bowen admitted other than the receipt of 

Appellant’s Sudafed purchase, there was no other evidence 

Appellant purchased any of the other items, brought them to the 

residence, or exercised control over them. 

7) Kevin Colville testified he was currently serving a prison 

term for possession of chemicals for the manufacture of 

methamphetamine. Appellant, Campanero, and others 

occasionally stayed in the bedroom where Appellant was 

located. He testified he was the person engaged in the 

manufacture of methamphetamine at his residence, but 

Appellant was not. He testified Appellant did not provide any 

of the chemicals found there. 

8) Appellant testified he was present at the Holaday Road 

residence on August 13, 2014. He purchased Sudafed the day 

before to give to his girlfriend. He denied manufacturing 

methamphetamine. He denied bringing any of the chemicals to 

the house. He admitted using methamphetamine on August 13, 

2014. He admitted he had a prior conviction for assembling 

chemicals. Appellant admitted he knew that Colville cooked 

meth and had done so before. 

{¶46} The trial court instructed appropriately as follows: 

“Whether an inference is made, rests entirely with you. Now, 

when considering circumstantial evidence, you may not draw 

one inference from another inference; but, you may draw more 

than one inference from the same facts and circumstances. In 

other words, you can’t stack one inference upon another to 

reach a factual conclusion.” 
Highland App. No. 14CA20 25

{¶47} Based on the foregoing, we find there was circumstantial 

evidence in this case supporting the conclusion that Appellant intended to 

manufacture methamphetamine. It is a logical inference that Appellant was 

familiar with the Holaday Road residence where various ingredients used to 

make methamphetamine were located. Colville and Appellant testified he 

stayed there on occasion. Detective Sanders saw Appellant there on July 23, 

2014 and three weeks later on August 13, 2014. 

{¶48} Appellant and Campanero were discovered by officers in a 

bedroom. Although Colville testified others stayed at the residence, the 

evidence demonstrates that Appellant had a significant connection to the 

bedroom where he was located on August 13, 2014. His identification cards 

and Campanero’s purse were found in the room. The absence of evidence 

indicating that other individuals had recently stayed in the bedroom supports 

the inference that the batteries and pseudoephedrine located on top of the 

dresser, along with the tote bag containing the Hamilton Beach blender box, 

were present under Appellant’s knowledge and control. 

{¶49} Furthermore, Appellant testified he had used 

methamphetamine on the date of his arrest. He purchased Sudafed the day 

before for the purpose of obtaining more methamphetamine. Importantly, 

Appellant testified he was aware that Colville made methamphetamine. 
Highland App. No. 14CA20 26

{¶50} More importantly, Deputy Antinore’s testimony places 

Appellant with the finished product in his hand, the clear baggie containing 

the white powdery substance ultimately determined to be methamphetamine 

by Kelsey Degan. Although Appellant denied manufacturing 

methamphetamine or knowing how to manufacture methamphetamine, and 

defense counsel cross-examined Deputy Antinore about why he did not 

immediately report seeing the bag in Appellant’s hand, the jury was free to 

believe some, all, or none of the witnesses’ testimony. The jury apparently 

chose to discredit Appellant and his witness. See State v. Seal, 20 N.E.3d 

392, 2015-Ohio-4167, (4th Dist.), ¶ 34. As cited above, “intent” is to be 

inferred from the act and surrounding circumstances. The evidence supports 

the inference that Appellant had engaged in the manufacture of 

methamphetamine, and therefore possessed an “intent” to manufacture, as 

the testimony was that he was seen with the finished product in his hand. 

{¶51} We acknowledge that this is a close case and we reiterate that 

the jury was in the best position to observe the witnesses and evaluate their 

credibility. Notably, the jury sent out two questions during deliberations, 

indicating they took seriously their duty to evaluate the evidence and 
Highland App. No. 14CA20 27

Appellant’s arguments.4

 Having reviewed the entire record, weighed the 

evidence, and considered the credibility of the witnesses as it arises from the 

transcript, we find a rational basis exists in the record for the jury’s decision. 

We do not find this to be the exceptional case where the evidence weighs 

heavily against conviction. Nor do we believe Appellant’s conviction is a 

manifest miscarriage of justice. As such, we overrule Appellant’s second 

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

ASSIGNMENT OF ERROR THREE 

A. STANDARD OF REVIEW 

{¶52} When reviewing a case to determine if the record contains 

sufficient evidence to support a criminal conviction, we must “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. 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. Hollis, 4th Dist. Pickaway No. 09CA9, 2010-

Ohio-3945, ¶ 20, citing State v. Smith, 4th Dist. Pickaway No. 06CA7, 

2007-Ohio-502, at ¶ 33, quoting State v. Jenks at paragraph two of the 

 

4

 However, we reiterate, as in Wickersham, supra, at Fn. 6, that “[T]his is not to suggest that a defendant’s 

conviction is unsustainable if a jury does not submit a question to the trial court during deliberations.” 
Highland App. No. 14CA20 28

syllabus. See, also, Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781 

(1979). 

{¶53} The sufficiency of the evidence test “raises a question of law 

and does not allow us to weigh the evidence,” Hollis, at ¶ 21; Smith at ¶ 34, 

citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983). 

Instead, the sufficiency of the evidence test “gives full play to the 

responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, 

to weigh the evidence, and to draw reasonable inferences from basic facts to 

ultimate facts.” Smith at ¶ 34, citing State v. Thomas, 70 Ohio St.2d 79, 79-

80, 434 N.E.2d 1356 (1982); State v. DeHass, 10 Ohio St.2d 230, 227 

N.E.2d 212 (1967), paragraph one of the syllabus. 

B. LEGAL ANALYSIS 

{¶54} Appellant next argues his conviction, pursuant to R.C. 

2925.041was based on insufficient evidence. 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. Wickersham, supra, at 27; State v. Pollitt, 4th Dist. 

Scioto No. 08CA3263, 2010-Ohio-2556, ¶ 15. “ ‘Thus, a determination that 

[a] conviction is supported by the weight of the evidence will also be 

dispositive of the issue of sufficiency.’ ” State v. Lombardi, 9th Dist. 
Highland App. No. 14CA20 29

Summit No. 22435, 2005-Ohio-4942, ¶ 9, quoting State v. Roberts, 9th Dist. 

Lorain No. 96CA006462 (Sept. 17, 1997). See, State v. Chandler, 4th Dist. 

Highland No. 14CA11, 2014-Ohio-5125, ¶12. In the case sub judice, 

having found no merit to Appellant’s argument that his conviction is against 

the manifest weight of the evidence, we further find it is supported by 

sufficient evidence. As such, we overrule Appellant’s third assignment of 

error and affirm the judgment of the trial court. 

ASSIGNMENT OF ERROR ONE 

A. STANDARD OF REVIEW 

{¶55} The standard of review for a Crim.R. 29(A) motion is generally 

the same as a challenge to the sufficiency of the evidence. Hollis, supra, at ¶ 

19. See State v. Hairston, 4th Dist. Scioto No. 06CA3081, 2007-Ohio-3880, 

2007 WL 2181535, at ¶ 16; State v. Brooker, 170 Ohio App.3d 570, 2007-

Ohio-588, 868 N.E.2d 683, at ¶8. Appellate courts must determine whether 

the evidence adduced at trial, if believed, supports a finding of guilt beyond 

a reasonable doubt. See State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-

Ohio-52, 678 N.E.2d 541; State v. Jenkins, 61 Ohio St.3d 259, 574 N.E.2d 

492 (1991). 

B. LEGAL ANALYSIS 

{¶56} Here Appellant contends the trial court erred by denying his 
Highland App. No. 14CA20 30

Rule 29 motion for acquittal, against arguing the State failed to prove intent. 

We have set forth above the analysis for the evaluation of a Crim.R. 29 

motion is the same as the “sufficiency-of-the-evidence” analysis. We have 

found Appellant’s conviction was supported by the manifest weight of the 

evidence, and elaborated that the manifest weight of the evidence necessarily 

includes a finding that sufficient evidence supports the conviction. As such, 

we need not engage in further analysis under this assignment of error. 

Appellant’s argument hereunder is overruled. The judgment of the trial 

court is affirmed. 

ASSIGNMENT OF ERROR FOUR 

A. STANDARD OF REVIEW 

{¶57} In State v. Pulliam, 4th Dist. Scioto No. 14CA3609, 2015- 

Ohio-759, ¶ 5, see State v. Brewer, 2014-Ohio-1903, 11 N.E.3d 317, we 

recently held that when reviewing felony sentences, we apply the standard of 

review set forth in R.C. 2953.08(G)(2). Brewer at ¶ 33 (“we join the 

growing number of appellate districts that have abandoned the Kalish 

plurality's two step abuse-of-discretion standard of review; when the General 

Assembly reenacted R.C. 2953.08(G)(2), it expressly stated ‘[t]he appellate 

court's standard of review is not whether the sentencing court abused its 

discretion’ ”). See also State v. Graham, 4th Dist. Highland No. 13CA11, 
Highland App. No. 14CA20 31

2014-Ohio-3149, ¶ 31. R.C. 2953.08(G)(2) specifies that an appellate court 

may increase, reduce, modify, or vacate and remand a challenged felony 

sentence if the court clearly and convincingly finds either that “the record 

does not support the sentencing court's findings” under the specified 

statutory provisions or “the sentence is otherwise contrary to law.” 

B. LEGAL ANALYSIS 

{¶58} Appellant argues the general felony sentencing provision of 

R.C. 2929.14(A)(3)(a), revised most recently by House Bill 234, effective 

March 23, 2015, conflicts with the internal sentencing provision of R.C. 

2929.041. On his conviction for manufacture of drugs, Appellant was 

sentenced to a five-year mandatory sentence, in accordance with the 

provision of R.C. 2929.041 which states: 

“Whoever violates this section is guilty of illegal assembly or 

possession of chemicals for the manufacture of drugs. Except 

as otherwise provided in this division, illegal assembly or 

possession of chemicals for the manufacture of drugs is a 

felony of the third degree, and, except as otherwise provided in 

division (C)(1) or (2) of this section, division (C) of section 

2929.13 of the Revised Code applies in determining whether to 

impose a prison term on the offender. If the offense was 

committed in the vicinity of a juvenile or in the vicinity of a 

school, illegal assembly or possession of chemicals for the 

manufacture of drugs is a felony of the second degree, and, 

except as otherwise provided in division (C)(1) or (2) of this 

section, division (C) of section 2929.13 of the Revised Code 

applies in determining whether to impose a prison term on the 

offender. If the violation of division (A) of this section is a 

felony of the third degree under this division and if the 
Highland App. No. 14CA20 32

chemical or chemicals assembled or possessed in violation of 

division (A) of this section may be used to manufacture 

methamphetamine, there either is a presumption for a prison 

term for the offense or the court shall impose a mandatory 

prison term on the offender, determined as follows: 

(1) Except as otherwise provided in this division, there is a 

presumption for a prison term for the offense. If the offender 

two or more times previously has been convicted of or pleaded 

guilty to a felony drug abuse offense, except as otherwise 

provided in this division, the court shall impose as a mandatory 

prison term one of the prison terms prescribed for a felony of 

the third degree that is not less than two years. If the offender 

two or more times previously has been convicted of or pleaded 

guilty to a felony drug abuse offense and if at least one of those 

previous convictions or guilty pleas was to a violation of 

division (A) of this section, a violation of division (B)(6) of 

section 2919.22 of the Revised Code, or a violation of division 

(A) of section 2925.04 of the Revised Code, the court shall 

impose as a mandatory prison term one of the prison terms 

prescribed for a felony of the third degree that is not less than 

five years.” 

Pursuant to the above statute, Appellant was sentenced to a five-year 

mandatory prison term due to having two prior convictions for felony drug 

abuse offenses. However, recently revised R.C. 2929.14 (A)(3) provides: 

“(a) For a felony of the third degree that is a violation of section 

2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the 

Revised Code or that is a violation of section 2911.02 or 

2911.12 of the Revised Code if the offender previously has 

been convicted of or pleaded guilty in two or more separate 

proceedings to two or more violations of section 2911.01, 

2911.02, 2911.11, or 2911.12 of the Revised Code, the prison 

term shall be twelve, eighteen, twenty-four, thirty, thirty-six, 

forty-two, forty-eight, fifty-four, or sixty months. 
Highland App. No. 14CA20 33

(b) For a felony of the third degree that is not an offense for 

which division (A)(3)(a) of this section applies, the prison term 

shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six 

months.” 

{¶59} Appellant argues R.C. 2929.14 does not list R.C. 2925.041 as 

an offense excluded from the thirty-six month range. As such, the two 

statutes are in conflict. Appellant urges that statutes relating to the same 

general subject matter must be read in pari materia and viewed in a manner 

to carry out the legislative intent of the sections. 

{¶60} Appellee responds that there is no conflict between the statutes. 

Appellee cites R.C. 2929.13(C), which states: 

“Except as provided in division (D), (E), (F), or (G) of this 

section, in determining whether to impose a prison term as a 

sanction for a felony of the third degree or a felony drug offense 

that is a violation of a provision of Chapter 2925 of the Revised 

Code and that is specified as being subject to this division for 

purposes of sentencing, the sentencing court shall comply with 

the purposes and principles of sentencing under section 2929.11 

of the Revised Code and with section 2929.12 of the Revised 

Code.” 

Appellee points out that none of the language contained in subsections (D, 

(E), (F), and (G) of R.C. 2929.13 specifically refer to R.C. 2925.041 or 

2929.14. As such, the court can assume the intent is for R.C. 2925.041 to be 

a “stand alone” offense. 

{¶61} The Twelfth District Court of Appeals recently considered the 

argument that the statutes are in conflict in State v. Young, 31 N.E.3d 178, 
Highland App. No. 14CA20 34

2015-Ohio-1347. The Twelfth District Appellate Court pointed out the 

statutory provisions listed in R.C. 2929.14(A)(3)(a) refer to certain vehicular 

offenses, certain sexual offenses, and robbery and burglary. Importantly, 

illegal assembly of chemicals for the manufacture of drugs is not an offense 

listed in R.C. 2929.14(A)(3)(a). Thus, pursuant to R.C. 2929.14(A)(3)(a) 

and (b), appellant's maximum sentence for violating R.C. 2925.041 would be 

36 months in prison. As here, the record showed that Young was previously 

convicted of “illegal manufacture of drugs, aggravated possession of drugs” 

and had a prior conviction for illegal assembly of chemicals for the 

manufacture of drugs under R.C. 2925.041(A). As a result, pursuant to R.C. 

2925.041(C)(1), appellant's mandatory sentence for violating R.C. 2925.041 

would be 60 months (5 years) in prison. 

{¶62} The Young court observed in State v. Shaffer, 9th Dist. Medina 

Nos. 12CA0071-M, 12CA0077-2014-Ohio-2461, the decision cited by the 

state, that: 

“[T]he defendant entered a plea of no contest to illegal 

assembly of chemicals for the manufacture of drugs and was 

sentenced to five years in prison under R.C. 2925.041(C)(1). 

The Ninth Appellate District upheld the sentence on the ground 

that ‘the General Assembly intended R.C. 2925.041(C)(1) to be 

a specific exception to the general felony sentencing scheme set 

forth in R.C. 2929.14,’ and thus, R.C. 2925.041(C)(1) prevailed 

over R.C. 2929.14.” Id. at ¶42. 

{¶63} The Shaffer court held in its decision: 
Highland App. No. 14CA20 35

“Here, similar to the facts in Sturgill, Ms. Shaffer's sentence for 

a felony of the third degree was increased from thirty-six 

months to five-years because R.C. 2925.041(C)(1) specifically 

mandates imprisonment of ‘not less than five-years’ if certain 

conditions precedent are met. Additionally, as indicated above, 

both R.C. 2929.14 and R.C. 2925.041 were amended by H.B. 

86 on September 30, 2011. As a result, we conclude that if the 

General Assembly wished to amend R.C. 2925.041(C)(1), in 

order to remove the penalty enhancement language, it would 

have done so at that time. Instead, the General Assembly 

amended R.C. 2925.041(C)(1) to state that the court shall 

impose as a mandatory prison term one of the prison terms 

prescribed for a felony of the third degree that is not less than 

five years if ‘two or more times previously [the offender] has 

been convicted of or pleaded guilty to a felony drug abuse 

offense and if at least one of those previous convictions or 

guilty pleas was to a violation of division (A) of this section, a 

violation of division (B)(6) of section 2919.22 of the Revised 

Code, or a violation of division (A) of section 2925.04 of the 

Revised Code[.]’ CA0077-M (Emphasis added.) (Italicized 

words indicate changes made to R.C. 2925.041(C)(1) in H.B. 

86.) Shaffer, at ¶ 14.” 

{¶64} The Young court noted in addressing the conflict between the 

statutes and seeking guidance with this matter, the Shaffer court relied on the 

12th district’s decision in State v. Sturgill, 12th Dist. Clermont Nos. 

CA2013-01-002 and CA2013-01-003, 2013-Ohio-4648. However, on 

March 23, 2015, the Twelfth District Appellate Court explicitly overruled 

Sturgill and its progeny in State v. Burkhead, 12th Dist. Butler No. CA2014–

02–028, 2015-Ohio-1085. The holding and analysis in Sturgill was no 

longer good law in the 12th appellate district. 
Highland App. No. 14CA20 36

{¶65} The Young court also considered the arguments made in State 

v. Dunning, 12th Dist. Warren Nos. CA2013-05-048, CA2013-06-58, 2014-

Ohio-253, cited by the appellant. In Dunning, the defendant was first 

sentenced to five years in prison following his 2013 guilty plea to illegal 

assembly of chemicals for the manufacture of drugs. While his appeal was 

pending, the trial court resentenced the defendant to three years in prison. 

On appeal, this court addressed sua sponte whether the trial court had 

jurisdiction to resentence the defendant while his original appeal was still 

pending, and held that the trial court did not. Thereafter, the Twelfth 

District Court held: 

“That said, issues remain regarding the trial court's original 

decision sentencing Dunning to an aggregate five-year prison 

term. After a thorough review of the record, we find the trial 

court erred by sentencing Dunning to serve five years in prison 

resulting from his guilty plea *189 to illegal possession or 

assembly of chemicals for the manufacture of drugs in violation 

of R.C. 2925.041(A), a third-degree felony. At the time of his 

original sentencing hearing, the maximum prison sentence for a 

third-degree felony was three years in prison. Therefore, the 

trial court's original sentencing decision in Case No. CA2013-

05-048 is reversed and this matter is remanded for the sole 

purpose of resentencing Dunning according to law. Dunning's 

conviction is affirmed in all other respects.” Id. at ¶ 11.5

{¶66} The Young court held: 

 

5

 The defendant in Dunning was sentenced in 2013. Thus, the two statutory provisions at issue in the case 

at bar, to wit, R.C. 2929.14 and 2925.041(C)(1) as revised by H.B. 86, were also applicable in Dunning.

Young, supra, at ¶ 45. 
Highland App. No. 14CA20 37

“R.C. 2925.041(C)(1) sets forth a specific sentencing scheme 

for third-degree felonies involving felony drug abuse offenses 

and is thus specific, rather than general, in nature. See Shaffer,

supra, at ¶ 14-15. Likewise, R.C. 2929.14(A)(3), which sets 

forth a specific, two-tiered sentencing scheme for third-degree 

felonies, is specific, rather than general, in nature. See State v. 

Owen, 11th Dist., 2013-Ohio-2824, 995 N.E.2d 911, ¶ 27-28. 

The two statutes are clearly in conflict since the maximum 

sentence authorized for a third-degree felony drug offense 

under R.C. 2925.041(C)(1) is 60 months, while the maximum 

sentence allowed for third-degree felonies, other than those 

listed in R.C. 2929.14(A)(3)(a), is 36 months. Yet, R.C. 

2925.041(C)(1) also incorporates by reference R.C. 2929.14 

when the former states, “the court shall impose as a mandatory 

prison term one of the prison terms prescribed for a felony of 

the third degree * * *.” Young, at ¶43. 

{¶67} Young also referenced Owen, supra, in which the Eleventh 

Appellate District emphasized the fact that one of the overriding purposes of 

felony sentencing under H.B. 86 is to “ ‘punish the offender using the 

minimum sanctions that the court determines accomplish those purposes.’ ” 

Owen at ¶ 30, quoting R.C. 2929.11. The Owen court found that the 

foregoing language “evinces the legislative intent that sentencing courts are 

to use the minimum sanctions available to accomplish the purposes of felony 

sentencing.” Young, at ¶4. Furthermore, Young recognized the “rule of 

lenity” which applies where there is an ambiguity in a statute or a conflict 

between statutes. State v. Sheets, 12th Dist. Clermont No. CA2006-04-032, 

2007-Ohio-1799, ¶ 29. “The rule of lenity is codified in R.C. 2901.04(A) 

which provides in relevant part that “sections of the Revised Code defining 
Highland App. No. 14CA20 38

offenses or penalties shall be strictly construed against the state, and 

liberally construed in favor of the accused.” Young, at ¶ 48. Under the rule 

of lenity, “a court will not interpret a criminal statute so as to increase the 

penalty it imposes on a defendant where the intended scope of the statute is 

ambiguous.” Sheets at ¶ 28. 

{¶68} The Young court concluded as follows: 

“In light of our decisions in Dunning and Burkhead, the fact 

this court overruled Sturgill and its progeny, and the rule of 

lenity, we find that appellant should have been sentenced under 

R.C. 2929.14(A)(3)(b), and not under R.C. 2925.041(C)(1). 

The trial court's decision to sentence appellant to 60 months in 

prison under R.C. 2925.041(C)(1) is therefore clearly and 

convincingly contrary to law and appellant's sentence must be 

vacated. See R.C. 2953.08(G)(2). On remand, the trial court 

should exercise its discretion in resentencing appellant to one of 

the prison terms set forth in R.C. 2929.14(A)(3)(b) up to 36 

months in prison.” Id. at ¶ 49. 

{¶69} We have located no other cases beyond those cited which 

address the conflict issue raised by Appellant. Based on the persuasive 

reasoning set forth in Young, we find Appellant’s fourth assignment of error 

has merit. We find his five-year mandatory sentence under R.C. 

2925.041(C) is clearly and convincingly contrary to law. As such, we 

remand the matter for resentencing in accordance with this law as set forth in 

R.C. 2929.14(A)(3)(b). 

 
Highland App. No. 14CA20 39

JUDGMENT AFFIRMED IN 

PART, REVERSED IN PART, 

AND CAUSE REMANDED 

FOR FURTHER PROCEEDINGS 

CONSISTENT WITH THIS 

OPINION. 

 
Highland App. No. 14CA20 40

Harsha, J., concurring in part and dissenting in part: 

{¶70} I respectfully dissent from the majority’s disposition of the 

fourth assignment of error and would affirm the trial court’s judgment and 

sentence in toto. 

{¶71} To the extent that Clark contends R.C. 2929.14(A)(3) should 

prevail over R.C. 2929.041(C)(1) because the former has been amended 

more recently that the latter, he is mistaken. Although R.C. 2929.14 has 

been more recently amended, those changes did not affect R.C. 

2929.14(A)(3). As the court in State v. Young, supra, noted in footnote 4, 

“The 2012 amendment did not affect or modify R.C. 2929.14(A)(3).” 

Neither did the 2015 amendments found in HB 234, effective March 23, 

2015, which dealt with firearms legislation. The only change to R.C. 

2929.14(A)(3) was limited to striking the word “silencer” and the 

substitution of “suppressor” in its place. 

{¶72} Thus both the relevant sections of R.C. 2929.14(A)(3) and R.C. 

2929.041(C) were adopted at the same time in 2011 in HB 96. There is no 

basis for claiming R.C. 2929.14(A)(3) prevails because it was adopted later 

than R.C. 2929.041(C). 

{¶73} And as Clark points out in his brief at page 25, R.C. 2929.14 is 

a “general felony sentencing provision,” especially when compared to R.C. 
Highland App. No. 14CA20 41

2929.041(C). Thus, the provisions of R.C. 2929.041(C), which is a more 

specific pro-statute, should prevail. 

{¶74} Based upon those facts and the rationale expressed by the 

Ninth Appellate District in Shaffer, supra, I would affirm the trial court’s 

judgment of conviction and its sentence in its entirety. 
Highland App. No. 14CA20 42

JUDGMENT ENTRY 

It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN 

PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH 

THIS OPINION. Appellant and Appellee shall split the costs. 

 The Court finds there were reasonable grounds for this appeal. 

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

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. 

Harsha, J.: Concurs in Part and Dissents in Part with Opinion. 

For the Court, 

 BY: ______________________________ 

 Matthew W. McFarland, 

Administrative 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.