State v. Foughty

2013 Ohio 2297

Opinion

[Cite as State v. Foughty, 2013-Ohio-2297.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J. -vs- : : RICKY W. FOUGHTY : Case No. 12-CA-45 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2012-CR-0156

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 3, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CRYSTAL A. BENNETT THOMAS S. GORDON 239 West Main Street P.O. Box 314 Suite 101 Pickerington, OH 43147 Lancaster, OH 43130 Fairfield County, Case No. 12-CA-45 2

Farmer, J.

{¶1} On March 23, 2012, the Fairfield County Grand Jury indicted appellant,

Ricky Foughty, on one count of illegal manufacture of controlled substance

(methamphetamine) in violation of R.C. 2925.04 and one count of illegal assembly or

possession of chemicals used to manufacture controlled substance (methamphetamine)

with intent to manufacture controlled substance in violation of R.C. 2925.041.

{¶2} A jury trial commenced on June 5, 2012. The jury found appellant guilty of

complicity for both counts. By entry filed July 24, 2012, the trial court found the offenses

to be allied offenses. The state elected to have appellant sentenced on the complicity

of the illegal manufacture of controlled substance (methamphetamine) count. By

judgment entry filed August 6, 2012, the trial court sentenced appellant to three years in

prison.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶4} "THE TRIAL COURT'S DECISION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE, AND WAS NOT SUPPORTED BY SUFFICIENT

EVIDENCE."

{¶5} Appellant claims his convictions were against the manifest weight and

sufficiency of the evidence. We disagree.

{¶6} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State Fairfield County, Case No. 12-CA-45 3

v. Jenks, 61 Ohio St.3d 259 (1991). "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." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On

review for manifest weight, a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses 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. Martin, 20 Ohio App.3d 172 (1983), 175. See also, State

v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should be

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

conviction." Martin at 175.

{¶7} Appellant was convicted of complicity in violation of R.C. 2923.03(A)(2)

("[n]o person, acting with the kind of culpability required for the commission of an

offense, shall***[a]id or abet another in committing the offense") of the illegal

manufacture of controlled substance (methamphetamine) in violation of R.C. 2925.04(A)

("[n]o person shall knowingly cultivate marihuana or knowingly manufacture or

otherwise engage in any part of the production of a controlled substance") and of the

illegal assembly or possession of chemicals used to manufacture controlled substance

(methamphetamine) with intent to manufacture controlled substance in violation of R.C.

2925.041(A) ("[n]o 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 Fairfield County, Case No. 12-CA-45 4

intent to manufacture a controlled substance in schedule I or II in violation of section

2925.04 of the Revised Code").

{¶8} Appellant argues there was no evidence that he assisted another in

possessing the pills necessary to manufacture methamphetamine, that he possessed or

assisted another in possessing any other items necessary for the manufacture of

methamphetamine, or that he helped another manufacture methamphetamine.

{¶9} On March 16, 2012, police officers were dispatched to a residence based

on an anonymous tip that methamphetamine was being produced therein. T. at 255,

291-292. Appellant opened the door and permitted the officers to enter. T. at 256-257,

298, 300, 303. He explained that he rented a room in the residence. T. at 164-165,

196, 302. The officers informed appellant they were looking for an individual named

"Chastity" who was allegedly manufacturing methamphetamine. T. at 258. Appellant

went to his room and told Chastity overly loud to get dressed because the police wanted

to talk to her. T. at 259-260, 304-305. Chastity came out and then went back to the

room to retrieve her identification. T. at 260-261, 306. Upon entering appellant's room,

the officers were overcome by smoke and a chemical smell. T. at 261, 307-308. The

responding officers and the detectives that arrived on the scene found materials in the

room used to make methamphetamine. T. at 146-152, 166-167, 172-173, 176-181,

233-235, 262-263, 309-310, 459-461, 466-467; State's Exhibits 4, 6-8, and 25.

{¶10} Chasity Perkins, appellant's co-defendant, admitted she knew how to

"cook" methamphetamine and was "a good meth cooker." T. at 331-332. She testified

that appellant picked her up and brought her to his room to correct a batch of

methamphetamine that was "messed up." T. at 334-336. The only items she supplied Fairfield County, Case No. 12-CA-45 5

were some jars, tubing, and wire cutters. T. at 336. She testified appellant participated

in manufacturing the methamphetamine and "burped" the bottles. T. at 347, 357, 385-

386. Appellant and an individual named "Louie" provided the Sudafed for her to cook

the methamphetamine. T. at 355. Many items needed to cook methamphetamine,

lithium batteries, heating utensils, paint thinner, bottles, and Sudafed, were provided to

her when she got to the room. T. at 344-345, 355, 364-365, 367-368. She testified she

was dressed when the officers arrived. T. at 349-351.

{¶11} The jury had the opportunity to question Ms. Perkins's credibility via the

plea deal given to her and her cross-examination by appellant's defense counsel. Given

Ms. Perkins's testimony, corroborated by the many items found in appellant's room to

manufacture methamphetamine, the noticeable smoke and chemical smell, and

appellant's attempt to "cover up" the production of methamphetamine after the officers

arrived, we find sufficient credible evidence to sustain the convictions, and no manifest

miscarriage of justice.

{¶12} The sole assignment of error is denied. Fairfield County, Case No. 12-CA-45 6

{¶13} The judgment of the court of Common Pleas of Fairfield County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Hoffman, J. concur.

SGF/sg 521