[Cite as State v. Cope, 2018-Ohio-2479.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                COLUMBIANA COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                    v.

                                             DAVID J. COPE,

                                           Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                           Case No. 17 CO 0005


                                  Criminal Appeal from the
                      Court of Common Pleas of Columbiana County, Ohio
                                   Case No. 2015-CR-471

                                          BEFORE:
                   Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                               JUDGMENT:
                                                 Affirmed.


Atty. Megan Bickerton, Columbiana County Prosecutor’s Office, 38832 Saltwell Road,
Lisbon, Ohio 44432, for Plaintiff-Appellee.
Atty. Nikki Baszynski, Office of the Public Defender, 250 East Broad Street, Suite 1400,
Columbus, Ohio 43215, for Defendant-Appellant.

                                                  Dated:
                                               June 25, 2018
                                                                                       –2–



Donofrio, J.

       {¶1}    Defendant-appellant, David Cope, appeals from a Columbiana County
Common Pleas Court judgment convicting him of one count of illegal assembly or
possession of chemicals for the manufacture of drugs, one count of endangering
children, and three counts of possession of drugs, following a jury trial.
       {¶2}    In the morning of August 6, 2015, the Columbiana County Drug Task
Force (task force) executed a search warrant at appellant’s home on suspicions of drug
activity. Appellant was at work at the time. But three individuals who were staying at
his house, Ron Lacey, Jessica Rudish, and Courtney Wilson, were present.
Additionally, appellant’s ten-year old son was in the house.                 Police found a
methamphetamine lab in the basement and drugs and drug paraphernalia throughout
the house, including in appellant’s bedroom.
       {¶3}    A Columbiana County Grand Jury subsequently indicted appellant on one
count of illegal assembly or possession of chemicals for the manufacture of drugs, a
second-degree felony in violation of R.C. 2925.041(A); one count of endangering
children, a third-degree felony in violation of R.C. 2919.22(B)(6); one count of
possession of drugs (possession of cocaine, less than five grams), a fifth-degree felony
in violation of R.C. 2925.11(A); one count of possession of drugs (possession of
methamphetamine, less than the bulk amount), a fifth-degree felony in violation of R.C.
2925.11(A); and one count of possession of drugs (Nandrolone Decanoate, less than
the bulk amount), a first-degree misdemeanor in violation of R.C. 2925.11(A).
       {¶4}    The case proceeded to a jury trial. Appellant contended throughout the
trial that Lacey was the person who was responsible for the meth lab in the basement
and he was unaware of the drug activity taking place in his own house. Appellant
denied that any of the drugs or paraphernalia belonged to him. The jury found appellant
guilty on all counts.
       {¶5}    The trial court subsequently set the matter for a sentencing hearing. The
court sentenced appellant to four years on the count of illegal assembly or possession
of chemicals for the manufacture of drugs, two years on the count of endangering
children, and six months on each of the three drug possession counts.             The court



Case No. 17 CO 0005
                                                                                     –3–


ordered the first two sentences to be served consecutively and the remaining sentences
to be served concurrently, for a total sentence of six years in prison.
       {¶6}   Appellant filed a timely notice of appeal on February 23, 2017. He now
raises a single assignment of error.
       {¶7}   Appellant’s sole assignment of error states:

              DAVID    J.   COPE’S     CONVICTIONS        WERE     AGAINST    THE
       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶8}   Appellant argues his convictions were against the manifest weight of the
evidence. He notes that although the drugs were found in his home, he was not home
at the time. He points out that Rudish was the only person who connected him to the
drugs, and she too was charged with various drug offenses. He claims she had a
motive to implicate him because if she did not testify that the drugs in the bedroom were
appellant’s then she would be responsible for them. Appellant urges it is significant that
the state did not call the other two people in the house at the time of the drug raid as
witnesses. He claims their absence at his trial speaks to his lack of involvement and
Rudish’s lack of credibility. Moreover, appellant points to the testimony of the defense
witnesses who testified that he was a good father and respectable employee. Finally,
appellant points to his testimony that he was unaware that Lacey was manufacturing
methamphetamine in his basement. He states that the fact that drugs were present in
his home was not enough evidence to establish they were his drugs.
       {¶9}   In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and all
reasonable inferences and determine whether, in resolving conflicts in the evidence, 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, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997).          “Weight of the evidence concerns ‘the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other.’”         Id.   (Emphasis sic.)   In making its
determination, a reviewing court is not required to view the evidence in a light most




Case No. 17 CO 0005
                                                                                      –4–


favorable to the prosecution but may consider and weigh all of the evidence produced at
trial. Id. at 390.
       {¶10} Yet granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App. 3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the witnesses'
credibility by observing their gestures, voice inflections, and demeanor. State v. Rouse,
7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶ 49, citing State v. Hill, 75 Ohio St. 3d 195,
205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212
(1967), paragraph one of the syllabus. Thus, “[w]hen there exist two fairly reasonable
views of the evidence or two conflicting versions of events, neither of which is
unbelievable, it is not our province to choose which one we believe.” State v. Dyke, 7th
Dist. No. 99-CA-149, 2002-Ohio-1152.
       {¶11} In order to reverse a jury verdict as against the manifest weight of the
evidence, all three appellate judges must concur. Thompkins, 778 Ohio St. 3d at 389.
       {¶12} The jury convicted appellant of illegal assembly or possession of
chemicals for the manufacture of drugs in violation of R.C. 2925.041(A), which provides:

       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.

       {¶13} Methamphetamine is a schedule II controlled substance.                   R.C.
3719.41(C)(2).
       {¶14} The jury also convicted appellant of endangering children in violation of
R.C. 2919.22(B)(6), which provides that no person shall allow a child under 18 years of
age “to be on the same parcel of real property and within one hundred feet of, * * * any
act in violation of section 2925.04 or 2925.041 of the Revised Code when the person
knows that the act is occurring[.]”




Case No. 17 CO 0005
                                                                                     –5–


      {¶15} And the jury convicted appellant of three counts of possession of drugs in
violation of R.C. 2925.11, which provides: “No person shall knowingly obtain, possess,
or use a controlled substance or a controlled substance analog.” One count was for
possession of cocaine in an amount less than five grams.            One count was for
possession of methamphetamine in an amount less than the bulk amount. And the final
count was for possession of Nandrolone Decanoate (a steroid) in an amount less than
the bulk amount.
      {¶16} We must examine the evidence put forth at trial to determine if the jury’s
verdict on these counts was against the manifest weight of the evidence.
      {¶17} The state presented five witnesses.
      {¶18} Detective Brett Grabman, an undercover narcotics detective for the task
force, was the state’s first witness.   Det. Grabman obtained a search warrant for
appellant’s home. (Tr. 109). He testified that the task force entered appellant’s home
through an unlocked sliding-glass door at 8:30 a.m. (Tr. 111). Appellant was not home.
(Tr. 120). But the task force located Lacey and Wilson lying on a concrete floor in a
mudroom, Rudish in appellant’s bedroom, and appellant’s ten-year-old son in his own
bedroom. (Tr. 112-113). The task force took everyone outside and began to search the
house. (Tr. 113-114).
      {¶19} Det. Grabman testified that the basement was only accessible by way of a
padlocked door outside of the residence. (Tr. 114). He stated that they had to force the
door open. (Tr. 114). Upon entering the basement, Det. Grabman was overwhelmed
by the odor of chemicals. (Tr. 114). He evacuated the basement and called the fire
department based on his suspicion of a meth lab. (Tr. 114-115). Upon investigation,
Det. Grabman found four items related to the manufacture of methamphetamine in the
basement. (Tr. 116). He found a gallon jug of muriatic acid; a Mountain Dew bottle with
a tube coming out of it, which he considered to be an acid gas generator; a water pack;
and another plastic bottle that was a “one-pot” meth lab. (Tr. 117). The one-pot meth
lab tested positive for over 17 grams of methamphetamine. (Tr. 142).
      {¶20} Det. Grabman also noticed two fire pits in appellant’s yard. (Tr. 125, 127).
He testified that whenever the task force is investigating a possible meth lab, they look
for the possibility of destruction of evidence, which frequently entails some sort of fire



Case No. 17 CO 0005
                                                                                          –6–


pit. (Tr. 125). Inside of the fire pits, Det. Grabman found cut-open batteries. (Tr. 126,
127). He testified that lithium is a main ingredient in manufacturing methamphetamine
and lithium is most commonly found in batteries. (Tr. 126).
       {¶21} In the mudroom where Lacey and Wilson were located, the task force
found a digital scale with residue that tested positive for meth, a possible meth pipe, a
syringe, and a spoon. (Tr. 129-130, 141). In appellant’s master bedroom, the task
force found appellant’s mail and personal belongings. (Tr. 132). The task force also
found a purple lunch box containing syringes, a plate, and a meth pipe. (Tr. 132). The
task force also located a digital scale, a syringe with liquid in it, straws, and a glass plate
with a white substance and a white rock on it. (Tr. 133). The substance on the glass
plate tested positive for cocaine. (Tr. 151). The liquid in the syringe tested positive for
steroids.   (Tr. 152-153).     The residue in one of the straws tested positive for
methamphetamine. (Tr. 153).
       {¶22} On cross-examination, Det. Grabman admitted that in executing the
search warrant he was not specifically looking for appellant. (Tr. 161). He stated that
throughout his investigation, Lacey was the primary suspect. (Tr. 166).
       {¶23} Lieutenant Brian McLaughlin, the director of the task force, testified next.
He corroborated some of Det. Grabman’s testimony and described the meth
manufacturing process for the jury. Lt. McLaughlin also testified that the meth odor was
not present in the main living area of the home. (Tr. 185).
       {¶24} The state’s third witness was Whitney Voss, the forensic scientist at the
Ohio Bureau of Criminal Identification and Investigation who tested the items from
appellant’s house for controlled substances.          Voss testified that the plate from
appellant’s bedroom contained .07 grams of cocaine. (Tr. 196-197). She testified that
the liquid retrieved from the syringe in appellant’s bedroom was 1.18 grams of a steroid
known as Nandrolone Decanoate. (Tr. 197-200). And she testified that the straw from
appellant’s bedroom contained methamphetamine residue. (Tr. 201-202). Additionally,
Voss testified that the one-pot meth lab contained 17.96 grams of methamphetamine.
(Tr. 205-206).
       {¶25} Detective-Sergeant Steven Walker, the task force member who conducted
the search of appellant’s bedroom, was the state’s fourth witness. He testified that he



Case No. 17 CO 0005
                                                                                      –7–


located that plate with the cocaine near appellant’s bed. (Tr. 217-218). He located the
digital scale nearby. (Tr. 218-219). He also located a glass smoking device, several
straws, and a syringe with liquid in it in appellant’s bedroom.             (Tr. 219-220).
Additionally, Det.-Sgt. Walker testified that he found an Ohio Edison bill with appellant’s
name and address on it that had been rolled up into a straw and had a white powdery
substance on it. (Tr. 224).
       {¶26} On cross examination, Det.-Sgt. Walker stated that he did not smell
anything out of the ordinary in the main living area of the house. (Tr. 228).
       {¶27} Jessica Rudish was the state’s final witness. Rudish testified that she first
met appellant approximately five to six months prior to the raid. (Tr. 234). A mutual
friend had brought her to appellant’s home to get high. (Tr. 235-236). That day, she
used meth in appellant’s bathroom with appellant. (Tr. 236-237). Rudish testified that
over the next few months, she developed a sexual relationship with appellant as well as
a drug-related relationship. (Tr. 238). She stated that they used drugs together and
meth was their drug of choice. (Tr. 238). Rudish testified that usually appellant would
snort the meth and she would inject it. (Tr. 238). Rudish testified that sometimes when
they used meth at appellant’s house, his son was there. (Tr. 241). Rudish testified
either she, appellant, or Lacey would provide the meth for their use. (Tr. 239). When
asked if she knew that meth was being made in appellant’s basement, Rudish replied
“[p]retty much anyone that went to the house knew what was going on.” (Tr. 241).
       {¶28} Rudish stated that she would usually stay at appellant’s house using drugs
for three to seven days at a time. (Tr. 243). On the day of the raid, Rudish had been
staying at appellant’s house for several days. Additionally, Courtney Wilson had been
there for about three days. (Tr. 248). And Lacey was living there. (Tr. 239-240).
Rudish stated that appellant’s son interacted with all of them. (Tr. 249). Rudish stated
that on the day of the raid, appellant had asked her to watch his son while he went to
work. (Tr. 250-251).
       {¶29} Rudish further testified that during her relationship with appellant, they had
gone into his basement together to get high. (Tr. 255-256). She stated she eventually
learned that Lacey was manufacturing meth in appellant’s basement and that appellant
knew this was going on too. (Tr. 256). Rudish testified that Lacey provided both her



Case No. 17 CO 0005
                                                                                    –8–


and appellant with the meth that he made. (Tr. 257). She also testified that Lacey was
the only person she ever saw actually making the meth. (Tr. 276).
        {¶30} Appellant called four witnesses. He also took the stand in his defense.
        {¶31} First, appellant called Sean Campbell, the general manager of the
business where appellant worked.         Campbell testified that appellant is a good
employee. (Tr. 280). He stated he had no concerns with appellant’s attendance. (Tr.
281). Finally, Campbell stated that he has never had any concerns with appellant that
would have caused him to request that appellant be drug-tested. (Tr. 282).
        {¶32} Next, appellant called Jacob Snyder.     Snyder testified that he used to
have a drug problem. (Tr. 299). He stated that he would go to appellant’s house to pick
up Lacey so that they could go purchase heroin. (Tr. 300-302). He stated that for a
period of time, he went to appellant’s house to meet Lacey on a daily basis. (Tr. 301).
Snyder testified that appellant was never there and the heroin was not at his house.
(Tr. 301).
        {¶33} Appellant’s third witness was James Hiner, appellant’s supervisor.        He
characterized appellant as hard-working and stated appellant came to work every day.
(Tr. 319).
        {¶34} Raymond Rowe, appellant’s co-worker and friend, was appellant’s fourth
witness. Rowe testified that he spent a lot of time with appellant both at work and
socially. (Tr. 326-327). He did not have any concerns about appellant around the time
of the drug raid. (Tr. 327). Rowe also testified that appellant was a good father. (Tr.
327).
        {¶35} Finally, appellant testified. Appellant stated that he had gone to school
with Lacey 20 years ago. (Tr. 339). In 2015, appellant became reacquainted with
Lacey when a mutual friend brought Lacey to his house. (Tr. 340). Lacey needed a
place to stay, so appellant told him he could stay at his house.         (Tr. 340, 341).
Appellant stated he did not spend a lot of time with Lacey because he went to work and
then to his parents’ house, which kept him away from home for 12-14 hours a day. (Tr.
341-342).




Case No. 17 CO 0005
                                                                                       –9–


       {¶36} Appellant stated that he met Rudish through Lacey.           (Tr. 341).    He
described his relationship with her as “an acquaintance with benefits.” (Tr. 340). He
stated Rudish stayed at his house a few days a week. (Tr. 344).
       {¶37} Appellant testified that he did not know Lacey or Rudish to use drugs. (Tr.
344). He stated that they never did drugs in front of him. (Tr. 345). Nor did he know
Courtney Wilson to use drugs. (Tr. 346). Appellant testified that he had no idea there
was drug activity going on in his house. (Tr. 347). He claimed it must have occurred
while he was at work. (Tr. 347). Appellant stated that he only went into his basement
about once a month. (Tr. 353).
       {¶38} Appellant denied knowing how to make meth and denied ever using meth.
(Tr. 348). He testified that he would not allow drug use in his house. (Tr. 348-349). He
stated he had no knowledge of the drug activity occurring in his house until it was
raided. (Tr. 349).
       {¶39} Appellant testified that usually he dropped his son off with his parents
when he went to work.       (Tr. 350).   But on the day of the raid, his parents were
unavailable so Lacey agreed to watch him. (Tr. 350). He stated that when he left for
work, Lacey, Rudish, and Wilson were all in his kitchen. (Tr. 363). Appellant denied
knowing that there was a plate with cocaine, straws containing meth, a glass pipe, and
digital scale in his bedroom that morning. (Tr. 373). He testified that he had slept in his
room the previous night. (Tr. 373).
       {¶40} Considering this evidence, we cannot conclude that the jury lost its way in
finding appellant guilty.
       {¶41} There was no dispute that a methamphetamine lab was found in
appellant’s basement along with supplies to manufacture methamphetamine. There
was also no dispute that a plate containing cocaine, a straw containing meth residue,
and a syringe filled with a steroid were found in appellant’s bedroom where he had slept
the night before. And there was no dispute that appellant left for work and entrusted his
ten-year-old son in Lacey’s and Rudish’s care. The dispute here is whether the drugs
belonged to appellant and whether appellant knew of the drug manufacturing occurring
in his basement.




Case No. 17 CO 0005
                                                                                     – 10 –


       {¶42} Appellant argues that the state did not prove that the drugs found in his
home belonged to him.
       {¶43} “Possession” is “having control over a thing or substance, but may not be
inferred solely from mere access to the thing or substance through ownership or
occupation of the premises upon which the thing or substance is found.”                R.C.
2925.01(K).     But possession can be either actual or constructive.         “To establish
constructive possession, the state must prove that the defendant was conscious of the
object, and able to exercise dominion or control over it even though that object may not
be within his immediate physical possession.” State v. St. John, 7th Dist. No. 09 BE 13,
2009-Ohio-6248, ¶ 19, citing State v. Hankerson, 70 Ohio St. 2d 87, 90-91, 434 N.E.2d
1362 (1982).
       {¶44} As to the possession counts, the evidence was that drugs were located in
appellant’s bedroom the morning after he had just slept there. Appellant’s electric bill
was rolled into a straw and was located in close proximity to the drugs. And Rudish
testified that she and appellant frequently used meth together. Appellant testified that
he knew nothing about the drugs in his bedroom. This was a matter of credibility. The
jury was in the best position to judge the witnesses' credibility and conflicting testimony.
Rouse, 2005–Ohio–6328, at ¶ 49, citing Hill, 75 Ohio St. 3d at 205. That is because the
jurors could observe witnesses' gestures, voice inflections, and demeanor. Id. We will
not second-guess the jury's determinations of credibility. The jury was free to determine
that Rudish’s testimony was more credible than appellant’s testimony.
       {¶45} As to the illegal assembly or possession of chemicals for the manufacture
of drugs, the evidence was that a meth lab was located in appellant’s basement along
with various supplies to manufacture methamphetamine. Additionally, two burn piles
were located in appellant’s yard containing cut-open batteries. Det. Grabman testified
that lithium inside batteries was used to manufacture meth. Moreover, Rudish testified
that she had been in appellant’s basement with appellant to get high and that they both
knew there was a meth lab in the basement.
       {¶46} Finally, as to the endangering children, the evidence was that appellant
allowed his ten-year-old son to live in the same house where, according to Rudish, he
knew methamphetamine was being produced.



Case No. 17 CO 0005
                                                                                    – 11 –


      {¶47} Appellant argues Rudish’s testimony was not credible because she had a
motive to implicate him to cast blame away from her. But Rudish openly testified as to
her own drug use and admitted to using drugs in appellant’s home. Moreover, as stated
above, the jury was in the best position to judge Rudish’s testimony.
      {¶48} Appellant also contends it is significant that the state did not call Lacey
and Wilson as witnesses. He argues their absence demonstrates Rudish’s testimony
was not credible. But “the failure of the prosecution to call a witness does not give rise
to an inference that the witness' testimony would have been favorable to the accused.”
State v. Bowen, 7th Dist. No. 96 CO 68, 1999 WL 1138583 (Dec. 8, 1999), citing State
v. Daugherty, 26 Ohio App. 2d 159, 163-164, 269 N.E.2d 849 (4th Dist.1971).
      {¶49} Finally, appellant points to the testimony of the witnesses who testified
that he was a good father and respectable employee. While this character evidence
attempted to cast appellant in a good light, it did not rebut the evidence that was found
at his home. It was within the jury’s judgment to determine how to weigh the character
evidence against the rest of the evidence they heard.
      {¶50} In sum, appellant’s convictions are supported by the manifest weight of
the evidence.
      {¶51}     Accordingly, appellant’s sole assignment of error is without merit and is
overruled.
      {¶52}     For the reasons stated above, the trial court’s judgment is hereby
affirmed.


Waite, J., concurs
Robb, P. J., concurs




Case No. 17 CO 0005
[Cite as State v. Cope, 2018-Ohio-2479.]




        For the reasons stated in the Opinion rendered herein, the sole assignment of
error is overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be taxed
against the Appellant.

        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                              NOTICE TO COUNSEL
        This document constitutes a final judgment entry.