[Cite as State v. Lanik,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26192 26224 Appellee

v. APPEAL FROM JUDGMENT BUNNY L. LANIK ENTERED IN THE DANNY A. HAMBY COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellants CASE No. CR 11 02 0519 (B) CR 11 02 0519 (C)

DECISION AND JOURNAL ENTRY

Dated: February 6, 2013

MOORE, Judge.

{¶1} Appellants, Danny Hamby and Bunny Lynn Lanik, appeal from their convictions

in the Summit County Court of Common Pleas. We affirm.

I.

{¶2} In February of 2011, police officers were observing Ms. Lanik’s home due to

complaints that the police department had received regarding possible drug manufacturing at the

residence. While watching the home, the officers observed Ms. Lanik’s brother, Mr. Hamby,

exit the home with a white plastic bag in his hand. Mr. Hamby then left the home in a car driven

by John Tiffany. Officers followed the car, and, after determining that it had a broken driver’s

side view mirror, the officers initiated a traffic stop. The traffic stop led to the discovery of

materials associated with the manufacture of methamphetamine in the white plastic bag. 2

Officers arrested Mr. Hamby and returned to Ms. Lanik’s home. After obtaining her consent to

search the home, they discovered a methamphetamine lab in the basement.

{¶3} The Summit County Grand Jury indicted Ms. Lanik and Mr. Hamby on charges of

aggravated possession of drugs in violation of R.C. 2925.11, two counts of endangering children

in violation of R.C. 2919.22, illegal manufacturing of methamphetamine in violation of R.C.

2925.04, and illegal possession of chemicals for the manufacture of methamphetamine in

violation of R.C. 2925.041, based upon the discovery of the methamphetamine lab in the house.

The indictment further charged Mr. Hamby with additional counts of illegal manufacturing of

methamphetamine and illegal possession of chemicals for the manufacture of methamphetamine

based upon the discovery of the items in the car. In addition, the indictment was later

supplemented to charge Mr. Hamby with another two counts of endangering children in violation

of R.C. 2919.22.

{¶4} Ms. Lanik and Mr. Hamby entered not guilty pleas to all of the charges against

them. Mr. Hamby thereafter filed a motion to suppress, wherein he challenged the justification

for the traffic stop. After a hearing, the trial court denied the motion.

{¶5} Prior to trial, the State agreed to dismiss the two counts of endangering children

charged against Mr. Hamby in the original indictment. Also prior to trial, the State filed a

motion requesting the trial court to instruct the jury on complicity. The case proceeded to a jury

trial without the trial court ruling on the State’s requested instruction. After the State rested,

defense counsel moved to dismiss the charges pursuant to Crim.R. 29. The court granted the

motion as to the aggravated possession of drugs count in regard to Mr. Hamby only. After

closing arguments, the State reiterated its request for a complicity instruction. Counsel for Mr.

Hamby objected to the giving of a complicity instruction on the basis that counsel had 3

strategized his examination of witnesses in such a way as to demonstrate that the State could not

prove that Mr. Hamby was the principal offender. The trial court overruled the objection and

provided the jury with a complicity instruction. After deliberations, the jury found Mr. Hamby

guilty of the two counts of illegal manufacture of methamphetamine and the two counts of illegal

assembly or possession of chemicals for the manufacture of methamphetamines. The jury found

Mr. Hamby not guilty of the endangering children charges as contained in the supplemental

indictment. The jury found Ms. Lanik guilty of one count of endangering children, aggravated

possession of drugs, illegal manufacturing of drugs, and illegal assembly or possession of

chemicals for the manufacture of drugs. The jury found Ms. Lanik not guilty of the remaining

count of endangering children. In sentencing entries issued on November 14, 2011 respectively,

the trial court sentenced Mr. Hamby to a total term of incarceration of five years and sentenced

Ms. Lanik to a total term of incarceration of four years.

{¶6} Mr. Hamby and Ms. Lanik timely appealed from the sentencing entries, and Mr.

Hamby has set forth five, and Ms. Lanik has set forth three, assignments of error for our review.

We have re-ordered and consolidated certain assignments of error to facilitate our discussion.

II.

MR. HAMBY’S ASSIGNMENT OF ERROR III

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING [MR. HAMBY]’S MOTION TO DI[S]MISS BASED UPON THE FAILURE TO PROVIDE THE REQUIRED PRELIMINARY HEARING AND THEREBY VIOLATING [MR. HAMBY]’S FIFTH AND FOURTEENTH AMENDMENT RIGHTS AND ARTICLE I, SECTION 14.

{¶7} In his third assignment of error, Mr. Hamby argues that the trial court erred in

denying his motion to dismiss for failing to provide him with a preliminary hearing. We

disagree. 4

{¶8} “A charge of felony shall be dismissed if the accused is not accorded a

preliminary hearing within the time required by Sections 2945.71 and 2945.72 of the Revised

Code.” R.C. 2945.73(A). Pursuant to R.C. 2945.71(C)(1), the State must provide a preliminary

hearing to an individual who has been charged with a felony within fifteen days if the person is

not being held in jail and within ten days if the person is being held in jail. See also Crim.R.

5(B)(1).

{¶9} Here, Mr. Hamby was arrested on February 22, 2011, and his initial appearance in

the trial court was on February 23, 2011. It is undisputed that Mr. Hamby was held in jail after

his arrest due to his inability to secure bond. On March 3, 2011, defense counsel filed a motion

to dismiss based upon the failure of the trial court to provide a preliminary hearing pursuant to

R.C. 2945.71(C). Meanwhile, the same charges on which Mr. Hamby was being held were

presented to the grand jury, which returned an indictment on March 11, 2011.

{¶10} In State v. Pugh, (“Pugh I”), 9th Dist. No. 8029,

, *1 (May 19,

1976), this Court addressed a similar fact pattern. There, Mr. Pugh was arrested on a felony

charge and was held in jail for nineteen days prior to his preliminary hearing, in violation of R.C.

2945.71(C)(1). Mr. Pugh moved to dismiss the charge, and the trial court overruled his motion.

He was subsequently indicted by the grand jury on the same charge, and was then tried and

convicted. On appeal, Mr. Pugh maintained that his charge should have been dismissed for

failure to provide him a preliminary hearing within the time mandates of R.C. 2945.71(C)(1).

This Court concluded that Mr. Pugh was “correct in asserting the charge should have been

dismissed in the Akron Municipal Court.” Pugh I at *1. However, this Court further noted that,

even had the municipal court dismissed the charge, such a dismissal would have been in the

nature of a nolle prosequi.

citing R.C. 2945.73(D). Therefore, the dismissal was not “a bar 5

to any further criminal proceedings against him based on the same conduct.” Pugh I at *1,

quoting R.C. 2945.73(D). Accordingly, because Pugh had been “properly indicted and tried,”

we determined that “[t]he error below was not prejudicial,” and we affirmed his conviction.

Pugh I at *1. Mr. Pugh then appealed this Court’s decision to the Ohio Supreme Court, which

affirmed. State v. Pugh,

(1978). See also State v. Bonarrigo,

(1980) (noting that “a valid indictment can be returned subsequent to either a nolle prosequi

or a dismissal of prior felony charges for failure to provide a preliminary hearing within 15 days

of the initial arrest”).

{¶11} Here, just as in Pugh I, although Mr. Hamby was not provided a preliminary

hearing within the time mandates of R.C. 2945.71(C)(1), the grand jury subsequently indicted

him. Therefore, although his charges should have been dismissed in the Akron Municipal Court

for its failure to hold a preliminary hearing, he does not challenge the validity of the subsequent

indictment on which he was tried and convicted. Accordingly, the municipal court’s error in

failing to hold a preliminary hearing was not prejudicial. Therefore, Mr. Hamby’s third

assignment of error is overruled.

MR. HAMBY’S ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING [MR. HAMBY]’S MOTION TO SUPPRESS BASED UPON INVALIDLY OBTAINED CONSENT AND THEREBY VIOLATING [MR. HAMBY]’S FOURTH AND FOURTEENTH AMENDMENT RIGHTS AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION AGAINST UNREASONABLE SEARCHES AND SEIZURES * * *.

{¶12} In his second assignment of error, Mr. Hamby argues that the trial court erred in

denying his motion to suppress because “[c]onsent to search the car in the case at bar was not

requested until after the purpose for the original stop had terminated.” However, in his motion to

suppress, Mr. Hamby argued that the evidence obtained from the search of the car should have 6

been suppressed because the officers lacked justification to stop the car. Although Mr. Hamby

now argues that Mr. Tiffany’s consent was “invalidly obtained” due to the length of the stop he

did not raise this argument in his motion to suppress below. Therefore, we decline to review the

arguments made in his third assignment of error, which he makes for first time on appeal. See

State v. Hairston, 9th Dist. No. 05CA008768,

(explaining that this Court

need not reach the merits of an issue when an appellant forfeits that issue at trial by failing to

raise it and subsequently fails to argue plain error on appeal). Accordingly, Mr. Hamby’s third

assignment of error is overruled.

MS. LANIK’S ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED [MS.] LANIK’S MOTION FOR JUDGMENT OF ACQUITTAL UNDER CRIM. R. 29 AS THERE WAS NOT SUFFICIENT EVIDENCE PRESENTED BY THE STATE[ ]TO ESTABLISH A PRIMA FACIE CASE OF ANY CHARGES BEING SUBMITTED TO THE JURY[.]

MR. HAMBY’S ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN FAILING TO GRANT MR. HAMBY’S MOTION FOR JUDGMENT OF ACQUITTAL ON ALL CHARGES, AS THE EVIDENCE PRESENTED WAS NOT LEGALLY SUFFICIENT TO SUPPORT A CONVICTION IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.

{¶13} In their first and fourth assignments of error, Ms. Lanik and Mr. Hamby,

respectively, argue that their convictions were not supported by sufficient evidence. We

disagree.

{¶14} The issue of whether a conviction is supported by sufficient evidence is a question

of law, which we review de novo. State v. Thompkins,

(1997). When

considering a challenge to the sufficiency of the evidence, the court must determine whether the

prosecution has met its burden of production.

(Cook, J. concurring). In making this 7

determination, an appellate court must view the evidence in the light most favorable to the

prosecution:

An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Jenks,

(1991), paragraph two of the syllabus. Circumstantial and

direct evidence “possess the same probative value[.]”

at paragraph one of the syllabus.

“Furthermore, if the State relies on circumstantial evidence to prove any essential element of an

offense, it is not necessary for such evidence to be irreconcilable with any reasonable theory of

innocence in order to support a conviction.” (Internal quotations omitted.) State v. Tran, 9th

Dist. No. 22911,

.

{¶15} Here, Ms. Lanik was convicted of child endangering in violation of R.C.

2919.22(B)(6), which provides:

No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age:

***

Allow the child to be on the same parcel of real property and within one hundred feet of, or, in the case of more than one housing unit on the same parcel of real property, in the same housing unit 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, whether or not any person is prosecuted for or convicted of the violation of section 2925.04 or 2925.041 of the Revised Code that is the basis of the violation of this division.

{¶16} Ms. Lanik was also convicted of aggravated possession of drugs in violation of

R.C. 2925.11(A), which provides that “[n]o person shall knowingly obtain, possess, or use a

controlled substance[.]” 8

{¶17} As to the remaining convictions, Ms. Lanik was convicted of one count each, and

Mr. Hamby was convicted of two counts each, of illegal manufacturing of methamphetamine in

violation of R.C. 2925.04, and illegal possession of chemicals for the manufacture of

methamphetamine in violation of R.C. 2925.041. R.C. 2925.04(A) in part provides that “[n]o

person shall knowingly * * * engage in any part of the production of a controlled substance.”

R.C. 2925.041(A) provides, “No person shall knowingly assemble or possess one or more

chemicals that may be used to manufacture a controlled substance * * * with the intent to

manufacture a controlled substance * * * in violation of section 2925.04 of the Revised Code.”

R.C. 2925.041(B) 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 * * *. The assembly or possession of a single chemical that may be used in

the manufacture of a controlled substance * * *, with the intent to manufacture a controlled

substance in either schedule, is sufficient to violate this section.”

{¶18} Neither Ms. Lanik nor Mr. Hamby dispute that there was a methamphetamine lab

in the house. However, they maintain that Ms. Lanik’s boyfriend, Richard Costoff, ran this lab

without their knowledge or assistance and that the evidence was insufficient to demonstrate that

they engaged in, or were complicit in, these activities.

{¶19} Pursuant to R.C. 2923.03(F), “[a] charge of complicity may be stated in terms of

this section, or in the terms of the principal offense.” Ohio’s complicity statute provides,

No person acting with the kind of culpability required for the commission of an offense, shall do any of the following:

(1) Solicit or procure another to commit the offense;

(2) Aid or abet another in committing the offense;

(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code; 9

(4) Cause an innocent or irresponsible person to commit the offense.

R.C. 2923.03(A).

{¶20} In order to support a conviction based upon a defendant’s complicity through

aiding and abetting:

[T]he evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal.

State v. Johnson,

(2001). Proof of a shared criminal intent may be

inferred from the circumstances surrounding the offense including presence, companionship, and

conduct before and after the offense is committed.

.

{¶21} Here, in its case-in-chief, the State presented the testimony of Mr. Tiffany and of

three police officers who were present at the scene. Mr. Tiffany testified that Mr. Hamby hired

him as a driver approximately two weeks prior to February 22, 2011. On the date at issue, Mr.

Tiffany drove Mr. Hamby to Ms. Lanik’s house so that Mr. Hamby could change his clothes and

get something to eat. Mr. Tiffany waited in a back room on the first floor of the home and used

the computer while Mr. Hamby went upstairs. Mr. Tiffany could hear Mr. Hamby speaking with

a woman upstairs, but he was not aware of anyone else being present in the home. After about

one and one-half to two hours, Mr. Hamby advised Mr. Tiffany that he was ready to leave. A

few minutes after departing the home, police officers stopped Mr. Tiffany’s car. After they were

stopped, Mr. Hamby instructed Mr. Tiffany to not say anything to the officers. When the

officers asked Mr. Tiffany if they could look in the car, Mr. Tiffany agreed because he “wasn’t

aware of anything being in the car that was illegal and [he] was perfectly fine with it.”

{¶22} Officers Steve Hankins and Adam Lemonier and Lieutenant Brian Simcox

testified that they were involved in the search of the car and the search of Ms. Lanik’s home. 10

Officer Hankins testified that, on the date at issue, he noticed that a car was unusually parked in

Ms. Lanik’s driveway “with the tail end basically on the street.” Because of the unusually-

parked car and because he had received complaints regarding the residence, Officer Hankins

decided to observe the residence. However, during his surveillance, he had to respond to a call,

and he contacted Officer Lemonier to replace him.

{¶23} Officer Lemonier testified that he set up surveillance on Ms. Lanik’s home in

order to follow up with complaints that the police department had received regarding the house.

While he was watching the home, he saw Mr. Tiffany leave the house with Mr. Hamby, who was

carrying a white bag. The two men departed in the unusually-parked car. Officer Lemonier

advised Officer Hankins that the car was moving, and Officer Lemonier initiated a traffic stop.

Officer Lemonier then obtained Mr. Tiffany’s consent to search the vehicle.

{¶24} Lieutenant Simcox testified that he heard that the officers had stopped a car

leaving Ms. Lanik’s residence, which they had been observing, and he went to the scene to assist.

He learned that the officers had been given consent to search the car, and the lieutenant took Mr.

Hamby out of the passenger’s side of the car to pat him down. When he removed Mr. Hamby

from the car, the lieutenant “could smell a strong ammonia smell from the front passenger floor.”

The officers removed a white bag from the front passenger floor. Inside the bag, the officers

found ammonia nitrate that had been soaked in a solvent, lithium batteries that had been cut in

half, and empty boxes of Sudafed. The officers also found a bottle of a solvent, Heet, located

between the driver’s seat and door. Lieutenant Simcox testified that these materials are

commonly used in the production of methamphetamine. The officers placed Mr. Tiffany and

Mr. Hamby under arrest. 11

{¶25} Lieutenant Simcox further testified that, while Officer Lemonier was tagging

evidence obtained from the search of the car, the lieutenant went to Ms. Lanik’s home.

Lieutenant Simcox authenticated a digital audio recording of part of his encounter with Ms.

Lanik, which was admitted into evidence at trial. During their discussion, Lieutenant Simcox

advised Ms. Lanik that Mr. Hamby and another individual were stopped by police shortly after

leaving her home and that the officers had located materials consistent with the production of

methamphetamine in the car. Ms. Lanik agreed to let the officers search the home. On the

recording Ms. Lanik stated that there “is not supposed to be” a methamphetamine lab in the

home. The lieutenant replied that there was an odor in the home which was consistent with

methamphetamine production, and Ms. Lanik responded that she was unable to smell it. The

lieutenant also asked Ms. Lanik if her boyfriend, Richard Costoff, was home, and she stated that

she was unsure, and began calling his name. While Ms. Lanik was accompanying the lieutenant

through the home, they encountered Mr. Costoff walking up the basement steps. From the

basement steps, the lieutenant could see part of a methamphetamine lab in the basement. The

officers then removed Ms. Lanik and Mr. Costoff from the house. While they were exiting the

home, Mr. Costoff confirmed that there was a methamphetamine lab in the basement, and he

warned the officers that there was lithium soaking in a solvent at that time, which could pose a

danger to the officers. Mr. Costoff then volunteered to walk through the basement with the

officers in order to point out where the dangerous materials were located.

{¶26} In the basement, officers located a glass jar containing liquid methamphetamine.

In another basement room, officers located trash bags containing a substantial amount of “meth

trash,” including Sudafed wrappers, cold packs, and lithium strips. Lieutenant Simcox explained

that cold packs contain the ammonia nitrate that is used in methamphetamine production. Based 12

upon the lieutenant’s observations of the used materials found in the basement, he opined that the

drugs had been manufactured in the house “for an extensive period of time.” In addition, the

lieutenant testified that Mr. Costoff had informed him that he had been producing

methamphetamine in the basement for about one month.

{¶27} In the first floor kitchen, officers found propane, alcohol, and funnels that could

be used in the manufacturing of methamphetamine. In the first floor bedroom, officers found

two receipts for Sudafed and cold packs which were purchased on February 22, 2011. In the

dresser of the upstairs southwest bedroom, which Officer Lemonier testified that Ms. Lanik had

indicated was her bedroom, officers found structured tin foil, which Lieutenant Simcox testified

appeared to be a “smoking device.” Also in Ms. Lanik’s bedroom, the officers located a white

powder on top of glass, a century safe containing a “meth pipe” and plastic bags, plates which

appeared to have a “residue” on them, an additional “meth pipe” in a dresser drawer, and a

digital scale. Also on the second floor, officers discovered a children’s bedroom, although no

children were then located in the home at the time of the arrest. Photographs taken during the

search of the car and the house were admitted into evidence. The photo of the children’s

bedroom displays bunk beds with bedding, and there appears to be assorted girl’s clothing and

accessories on the top bunk bed and on the floor. The photo also shows what appears to be small

Valentine’s Day cards and candy lying on the middle of the bed, next to an overturned bag.

{¶28} Ms. Lanik and Mr. Hamby argue that the above evidence was insufficient to

support their convictions. We will consider separately the sufficiency of this evidence as it

relates to Ms. Lanik and as it relates to Mr. Hamby. 13

Bunny Lynn Lanik

{¶29} In regard to Ms. Lanik, she does not dispute that she has two children who at

times stay in the bedroom located on the second floor of her home. From the photograph

displaying the condition of, and items located within, the children’s bedroom, the jury could

reasonably infer that a child was actively or recently residing in this room. Although Lieutenant

Simcox testified that no children were home at the time of Ms. Lanik’s arrest, he further testified

that the amount of methamphetamine “trash” located in the basement indicated that

methamphetamine had been manufactured for an “extensive period” of time. Additionally, the

lieutenant testified that Mr. Costoff had advised him that he had been making methamphetamine

in the home for about one month.

{¶30} Further, as set forth above, the officers’ testimony indicated that: there was an

odor in the house consistent with a “meth lab;” Mr. Costoff was actively manufacturing

methamphetamine on the date at issue while Ms. Lanik was present in the home; materials used

in the production and use of methamphetamine were located throughout the house; drug

paraphernalia, “white powder,” and “residue” were found in Ms. Lanik’s bedroom; and, the

methamphetamine lab was apparent from the basement steps. Based upon this, there was

sufficient evidence from which the jury could reasonably infer that Ms. Lanik allowed a child to

be present in the home when she had knowledge that methamphetamine was being manufactured

in the home. Further, based upon this testimony, a jury could reasonably infer that Ms. Lanik

was engaged in, or at minimum complicit in, possessing methamphetamine, manufacturing

methamphetamine, and possessing items used in the assembly of methamphetamine.

{¶31} Accordingly, Ms. Lanik’s convictions for endangering children, aggravated

possession of drugs, illegal manufacturing of drugs, and illegal assembly or possession of 14

chemicals for the manufacture of drugs were supported by sufficient evidence. Therefore, Ms.

Lanik’s first assignment of error is overruled.

Danny Hamby

{¶32} Mr. Hamby was convicted of two counts of illegal manufacture of

methamphetamine and two counts of illegal assembly or possession of chemicals for the

manufacture of methamphetamine. One count of illegal manufacture of methamphetamine and

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

methamphetamine were based upon the discovery of materials associated with methamphetamine

production in the house. The remaining counts were based upon the discovery of materials

associated with methamphetamine production in the car.

{¶33} In regard to the house-based charges, Mr. Tiffany testified that, on that date at

issue, he waited for between one and one-half to two hours for Mr. Tiffany at the house. During

that time, he could hear Mr. Tiffany speaking with a woman upstairs, but Mr. Tiffany did not see

or hear Mr. Costoff. Lieutenant Simcox testified that Mr. Costoff was actively “cooking”

methamphetamine in the basement at that time, and that he acknowledged that he gave Mr.

Hamby the bag containing the methamphetamine materials. The odor of the bag was consistent

with the odor the officers testified they smelled at the house during the manufacture of

methamphetamine. Given this testimony, and when combined with the officers’ testimony

regarding the noticeable nature of the lab from the basement steps and the odor which was

present in the house, the jury could reasonably conclude that Mr. Hamby was involved, or at

minimum, was complicit in, the manufacturing of methamphetamine and the possession of items

utilized to make methamphetamine in the house. 15

{¶34} In addition, in regard to the car-based charges, the jury could reasonably infer

from the above testimony that Mr. Hamby was aware that methamphetamine-making materials

were located in the white bag, which Lieutenant Simcox testified Mr. Costoff had asked Mr.

Hamby to dispose of at the gas station. The disposal of the remnants of the manufacturing of

methamphetamine is an activity “incident to production” so as to be included in the definition of

“manufacture.” See State v. Myers, 9th Dist. No. 23435,

; (see also R.C.

2925.01(J) (defining “manufacture” to include “activities incident to production”). Based upon

the above evidence, the jury could reasonably conclude that Mr. Hamby knowingly engaged in

the production of methamphetamine by disposing of the remnants of the manufacturing process.

Further, when this evidence is considered with the evidence of the officers’ discovery of

materials in that bag and the discovery of the Heet in the car, the evidence is sufficient to

conclude that Mr. Hamby illegally possessed materials in the car which were intended to be used

in the production of methamphetamine.

{¶35} Accordingly, Mr. Hamby’s convictions for two counts of manufacturing

methamphetamine in violation of R.C. 2925.04 and for two counts of possessing materials used

in the assembly of methamphetamine in violation of R.C. 2925.041, were supported by sufficient

evidence. Therefore, Mr. Hamby’s fourth assignment of error is overruled.

MS. LANIK’S ASSIGNMENT OF ERROR II

THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE SINCE THE STATE OF OHIO FAILED TO PROVE EACH AND EVERY ELEMENT OF THE INDICTED OFFENSES BEYOND A REASONABLE DOUBT.

MR. HAMBY’S ASSIGNMENT OF ERROR V

MR. HAMBY’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[ ]IN VIOLATION OF THE DUE PROCESS CLAUSE OF 16

THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.

{¶36} In their second and fifth assignments of error, Ms. Lanik and Mr. Hamby,

respectively, argue that their convictions were against the manifest weight of the evidence.

When a defendant asserts that his or her conviction is against the manifest weight of the

evidence:

[A]n appellate court must review 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 trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten,

(9th Dist. 1986). In making this determination, this

Court is mindful that “[e]valuating the evidence and assessing credibility are primarily for the

trier of fact.” State v. Shue,

(9th Dist. 1994), citing Ostendorf-Morris

Co. v. Slyman,

(8th Dist. 1982) and Crull v. Maple Park Body Shop,

(12th Dist. 1987).

{¶37} In their arguments that their convictions were against the manifest weight of the

evidence, Ms. Lanik and Mr. Hamby maintain that the weight of the evidence supports their

contention that they had no knowledge of, and were not complicit in, Mr. Costoff’s drug-related

activities. In support, they cite to the testimony of Mr. Costoff and of Ms. Lanik.

{¶38} Mr. Costoff testified for the defense at trial. He averred that he, Ms. Lanik, Mr.

Hamby, Ms. Lanik’s children, and another adult couple, Ronnie and Petra, lived at the house.

Mr. Costoff explained that he had been addicted to methamphetamine for about seven years, and

he decided to create a methamphetamine lab in the basement of the home because “nobody

comes in the basement.” Mr. Costoff concealed the smells perpetuated by chemicals by

installing a makeshift ventilation system in the chimney. He testified that Ms. Lanik suffered 17

from emotional difficulties, was often heavily medicated, and slept most of the day. Neither she

nor Mr. Hamby had knowledge of his activities in the basement. Further, although Mr. Costoff

admitted that, on the date at issue, he gave the white bag to Mr. Hamby, and he asked him to

dispose of it at the gas station because it was going to smell, Mr. Costoff did not tell Mr. Hamby

what was in the bag.

{¶39} Further, Mr. Costoff testified that Ronnie and Petra resided in the first floor

bedroom of the home, and Ronnie had taught Mr. Costoff how to produce methamphetamine. In

exchange, Mr. Costoff agreed to dispose of several bags of methamphetamine “trash” for

Ronnie. Mr. Costoff testified that these were the same bags of trash that the officers located in

the basement, and he stated that he never cooked methamphetamine when the children were

home. Mr. Costoff further maintained that some of the drug-related items that the officers had

testified were found in his and Ms. Lanik’s bedroom belonged to him, and the remaining drug-

related items that the officers had testified were found in his and Ms. Lanik’s bedroom were

actually located in the bedroom that Ronnie and Petra shared on the first floor.

{¶40} Ms. Lanik testified on her own behalf at trial. Ms. Lanik confirmed that she

suffers from depression, and she rarely left the second floor of her home during the time that Mr.

Costoff was residing with her. Ms. Lanik acknowledged that she has two children and that,

although her son primarily resides with his aunt, her daughter resided with her during the

weekdays and with her aunt on the weekends. Due to Ms. Lanik’s depression, Mr. Costoff

usually took care of her daughter. Ms. Lanik further maintained that Mr. Costoff took care of the

household chores, and she never went into the basement, as Mr. Costoff did the family’s laundry.

{¶41} Ms. Lanik further testified that Mr. Hamby was residing at her house on February

22, 2011, but that he had “been gone.” On that day, Mr. Hamby had come upstairs, and Ms. 18

Lanik asked him if Mr. Costoff was home because her daughter needed to be picked up. Mr.

Hamby told her that he did not think Mr. Costoff was there, and Ms. Lanik got out of bed to

prepare to pick up her daughter. When she was ready to leave the house, she noticed officers

outside. After speaking with them, she agreed to let them search the house. Ms. Lanik

maintained that at no time prior to the officer’s discovery of the methamphetamine lab was she

aware of Mr. Costoff’s activities in the basement.

{¶42} Ms. Lanik and Mr. Hamby maintain that the testimony of Ms. Lanik and Mr.

Costoff demonstrates that Mr. Costoff successfully concealed his production of

methamphetamine, and neither Ms. Lanik nor Mr. Hamby were engaged in, or knowingly

assisted in, the manufacturing of methamphetamine, the possession of items to produce

methamphetamine, or the possession of methamphetamine.

{¶43} However, as set forth in our discussion of the sufficiency of the evidence,

circumstantial evidence existed from which a jury could reasonably infer that Ms. Lanik and Mr.

Hamby were, at minimum, complicit in Mr. Costoff’s activities. Although Mr. Costoff

maintained that his makeshift exhaust system “sucked * * * the smells right out” of the

basement, Lieutenant Simcox testified that he could smell an odor associated with

methamphetamine production when he was on the first floor of the house speaking to Ms. Lanik.

Further, methamphetamine paraphernalia, “white powder,” and “residue” were found in Ms.

Lanik’s bedroom. Materials associated with the production of methamphetamine were located

throughout the home, and the basement lab was apparent from the basement steps. The

witnesses’ testimony further indicated that Mr. Hamby had contact with Mr. Costoff in the home

during the time that Mr. Costoff testified that he was actively manufacturing methamphetamine

in the basement. Mr. Costoff testified that Mr. Hamby agreed to dispose of the bag, the smell of 19

which was consistent with methamphetamine production, and the officers located materials used

in the production of methamphetamine in the bag and in the car.

{¶44} Although Ms. Lanik’s and Mr. Costoff’s testimony may contradict the inferences

drawn from the above testimony, in that both individuals maintained that Mr. Costoff produced

methamphetamine without Mr. Hamby’s or Ms. Lanik’s knowledge or assistance, “[t]he jury is

free to believe all, part, or none of the testimony of each witness.” Prince v. Jordan, 9th Dist.

No. 04CA008423,

, citing State v. Jackson,

(4th

Dist. 1993). This is because the jury “is best able to view witnesses and observe their demeanor,

gestures and voice inflections, and use these observations in weighing the credibility of the

proffered testimony.” State v. Cook, 9th Dist. No. 21185,

, ¶ 30, quoting

Giurbino v. Giurbino,

(8th Dist. 1993). Although it is possible that Ms.

Lanik and Mr. Hamby were neither aware of, nor complicit in, Mr. Costoff’s production of

methamphetamine, based upon our review of the record we cannot say that the jury lost its way

in determining otherwise. See State v. Kirk, 9th Dist. No. 26358,

; see also

State v. Peasley, 9th Dist. No. 25062,

, ¶ 18 (“A conviction is not against the

manifest weight because the [trier of fact] chose to credit the State's version of events.”).

{¶45} Based upon the foregoing, we conclude that this is not the exceptional case where

the jury created a manifest miscarriage of justice in finding Ms. Lanik guilty of endangering

children, aggravated possession of drugs, illegal manufacturing of drugs, and illegal assembly or

possession of chemicals for the manufacture of drugs or in finding Mr. Hamby guilty of two

counts of illegal manufacturing of drugs and two counts of illegal assembly or possession of

chemicals for the manufacture of drugs. Accordingly, Ms. Lanik’s second assignment of error

and Mr. Hamby’s fifth assignment of error are overruled. 20

MS. LANIK’S ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY ON COMPLICI[T]Y WHEN NO EVIDENCE WAS EVER OFFERED THAT [MS.] LANIK AIDED OR ABETTED[.]

MR. HAMBY’S ASSIGNMENT OF ERROR I

THE TRIAL COURT VIOLATED MR. HAMBY’S RIGHT TO FAIR AND IMPARTIAL TRIAL BY ALLOWING THE JURY TO BE CHARGED ON COMPLICITY AFTER THE DEFENSE HAD RESTED AND[ ]MR. HAMBY PRESENTED A DEFENSE THAT HAMPERED HIS[ ]ABILITY TO ADEQUATELY PREPARE A DEFENSE IN VIOLATION [OF] HIS RIGHTS UNDER THE SIXTH AND FOURTE[E]NTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

{¶46} In their third and first assignments of error, Ms. Lanik and Mr. Hamby,

respectively, argue that the trial court erred by instructing the jury on complicity. We disagree.

{¶47} “We review the trial court’s decision to instruct the jury on complicity for an

abuse of discretion.” State v. Wilson, 9th Dist. No. 25100,

, citing State v.

Horne, 9th Dist. No. 24672,

, ¶ 19. An “abuse of discretion” connotes that the

trial court was arbitrary, unreasonable, or unconscionable in its ruling. Blakemore v. Blakemore,

(1983). “A complicity instruction is proper if ‘the evidence adduced at

trial could reasonably be found to have proven the defendant guilty as an aider and abettor[.]’”

Kirk at ¶ 4, quoting State v. Perryman,

(1976), paragraph five of the syllabus,

overruled on other grounds by Perryman v. Ohio,

(1978).

{¶48} Here, as set forth in our discussions relative to the sufficiency of the evidence and

the manifest weight of the evidence, the testimony adduced at trial indicated that the house in

which Ms. Lanik and Mr. Hamby resided contained a methamphetamine lab in the basement.

The officers testified that this lab was apparent from the basement steps and that

methamphetamine-making materials were located throughout the home and within the white bag 21

that Mr. Costoff provided to Mr. Hamby. The officers further testified that the house, the white

bag, and the car in which Mr. Hamby was a passenger, emanated an odor consistent with the

production of methamphetamine. The testimony also indicated that both Ms. Lanik and Mr.

Hamby were present in the home when Mr. Costoff was actively manufacturing

methamphetamine on February 22, 2011. Police officers discovered “white powder,” “residue,”

and “meth pipes,” in the bedroom that Ms. Lanik shared with Mr. Costoff.

{¶49} Based upon the foregoing, the trial court did not abuse its discretion in

determining that the evidence adduced at trial could reasonably support Mr. Hamby’s and Ms.

Lanik’s convictions as aiders and abettors. See Perryman at paragraph five of the syllabus.

Accordingly, Ms. Lanik’s third assignment of error is overruled.

{¶50} Furthermore, the Ohio Supreme Court has reasoned that R.C. 2923.03(F), which

provides that “[a] charge of complicity may be stated in terms of this section, or in the terms of

the principal offense,” puts a defendant on notice that the trial court could instruct the jury on

complicity, even where the indictment charged the defendant as though he were the principal.

State v. Herring,

(2002), and State v. Keenan,

(1998).

{¶51} Here, the State moved to include the complicity instruction prior to trial. Defense

counsel did not respond to this motion, and the trial court did not rule on this motion prior to

trial. However, after closing arguments, the State asked the trial court to rule on the instruction.

Mr. Hamby’s counsel objected to the instruction, stating that, had he known the court would give

the instruction, he would have followed a different strategy in defending Mr. Hamby. Based

upon defense counsel’s remarks, Mr. Hamby argues that his defense was prejudiced due to his

lack of notice that the trial court would give the complicity instruction. 22

{¶52} However, as set forth above, R.C. 2923.03(F) provides notice that a complicity

instruction may be given.

. Further, here, the State made a pretrial motion

requesting a complicity instruction. Therefore, we find Mr. Hamby’s argument that his counsel

had no notice that such an instruction may be given to lack merit.

{¶53} Accordingly, Mr. Hamby’s first assignment of error is overruled.

III.

{¶54} Ms. Lanik’s and Mr. Hamby’s assignments of error are overruled. The judgments

of the Summit County Court of Common Pleas are affirmed.

Judgments affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellants.

CARLA MOORE FOR THE COURT 23

WHITMORE, P. J. BELFANCE, J. CONCUR.

APPEARANCES:

RHONDA L. KOTNIK, Attorney at Law, for Appellant.

DAWN M. KING, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.