[Cite as State v. Malone,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : Case No. 21CA9

v. :

DONALD MALONE, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

Angela Miller, Jupiter, Florida, for appellant.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Andrea M. Kratzenberg, Lawrence County Assistant Prosecuting Attorney, for appellee. ________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:4-21-22 ABELE, J.

{¶1} This is an appeal from a Lawrence County Common Pleas

Court judgment of conviction and sentence. A jury found Donald

Malone, defendant below and appellant herein, guilty of

aggravated drug possession, a second-degree felony. Appellant

assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR: 2 LAWRENCE, 21CA9

“APPELLANT MALONE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN HIS ATTORNEY FAILED TO FILE AN AFFIDAVIT OF INDIGENCY TO WAIVE THE MANDATORY FINE.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN DENYING APPELLANT MALONE’S MOTION TO SUPPRESS AS THE SEARCH OF THE LOCKED SAFE IN THE VEHICLE WAS UNLAWFUL.”

THIRD ASSIGNMENT OF ERROR:

“APPELLANT MALONE’S CONVICTION FOR AGGRAVATED POSSESSION OF DRUGS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

{¶2} On October 20, 2019, Lawrence County Sheriff’s

Sergeant Brian Chaffins stopped appellant’s vehicle for a

traffic violation. During the stop, Officer Chaffins learned

about appellant’s arrest warrant, he placed him under arrest and

conducted a search.

{¶3} During the search, Sergeant Chaffins found inside

appellant’s wallet a “jeweler’s bag” that contained what

appeared to be “crystal meth.” Based upon this discovery,

Chaffins suspected that additional drugs would be found inside

appellant’s vehicle, so he searched the vehicle. The vehicle

search revealed two hypodermic needles near the center of the

front passenger compartment and a small safe on the front 3 LAWRENCE, 21CA9

passenger’s seat. When Chaffins moved the safe, he heard

“something inside of it” and asked appellant about the safe.

Chaffins obtained the key to open the safe and discovered

approximately 14 or 15 grams “of crystal meth.” Appellant later

admitted that the safe contained about one half ounce of

methamphetamine. The prosecutor filed a bill of information

that charged appellant with aggravated drug possession, in

violation of R.C. 2925.11(A), a second-degree felony. Appellant

entered a not-guilty plea.

{¶4} Subsequently, appellant filed a motion to suppress the

evidence discovered during the search of the locked safe located

inside his vehicle. Appellant argued that Sergeant Chaffins

should have applied for a warrant to search the safe rather than

a search during the traffic stop. After the hearing, the trial

court overruled appellant’s motion to suppress evidence.

{¶5} At the May 10 and 11, 2021 jury trial, the state

presented evidence that appellant possessed three bags of

methamphetamine that weighed a total of 16.33 grams. Sergeant

Chaffins testified that he found two bags of methamphetamine

inside the safe located within appellant’s vehicle. Chaffins

believed that the amount of methamphetamine contained in the two

bags weighed between 14 and 15 grams. 4 LAWRENCE, 21CA9

{¶6} Lawrence County Sheriff’s Deputy Jonathan Spoljaric

testified that he found a third bag of methamphetamine when

appellant changed clothes at the jail. Spoljaric explained

that, when appellant changed into jail clothes, the deputy found

a bag of methamphetamine in appellant’s underwear. On cross-

examination, Spoljaric clarified that the bag of methamphetamine

had fallen out of appellant’s underwear. He stated: “I do

remember methamphetamine being in his underwear and it going

onto the floor.”

{¶7} Ohio Bureau of Criminal Investigation forensic

scientist Michelle Taylor testified that the two bags of

methamphetamine that Sergeant Chaffins discovered inside

appellant’s safe weighed 3.41 grams and 11.82 grams,

respectively. Taylor stated that the third bag discovered in

the jail weighed 1.10 grams.

{¶8} Appellant testified in his defense and did not dispute

that he possessed methamphetamine in his vehicle, but did

dispute the amount. Appellant stated that he had purchased 14.7

grams of methamphetamine. He explained that the methamphetamine

was weighed at the time of purchase and the amount he purchased

weighed “under fifteen grams.” 5 LAWRENCE, 21CA9

{¶9} Appellant further disputed that he possessed the

methamphetamine found at the jail. He denied that the

methamphetamine had been in his underwear and had fallen to the

floor while he changed into jail clothes. Appellant instead

claimed that he noticed a bag of methamphetamine on the floor,

and when he tried to pick it up the deputy told appellant not to

touch it.

{¶10} After hearing the evidence, the jury found appellant

guilty of second-degree-felony aggravated drug possession. The

trial court sentenced appellant to serve six to nine years in

prison and ordered him to pay a $7,500 fine. This appeal

followed.

I

{¶11} In his first assignment of error, appellant asserts

that he did not receive the effective assistance of counsel. In

particular, appellant alleges that trial counsel performed

ineffectively by failing (1) to file an affidavit of indigency,

and (2) to ask the court to find appellant indigent and unable

to pay the mandatory fine. Appellant claims that, if trial

counsel had filed an affidavit of indigency before sentencing, a

reasonable probability exists that the court would have found

appellant indigent and unable to pay the mandatory fine. 6 LAWRENCE, 21CA9

{¶12} The Sixth Amendment to the United States Constitution,

and Article I, Section 10 of the Ohio Constitution, provide that

defendants in all criminal proceedings shall have the assistance

of counsel for their defense. The United States Supreme Court

has generally interpreted this provision to mean a criminal

defendant is entitled to the “reasonably effective assistance”

of counsel. Strickland v. Washington,

,

,

(1984); accord Hinton v. Alabama,

,

,

(2014) (Sixth Amendment

right to counsel means “that defendants are entitled to be

represented by an attorney who meets at least a minimal standard

of competence”).

{¶13} To establish constitutionally ineffective assistance

of counsel, a defendant must show that (1) his counsel’s

performance was deficient, and (2) the deficient performance

prejudiced the defense and deprived the defendant of a fair

trial. E.g., Strickland,

; State v. Myers,

,

,

; State v.

Powell,

,

,

, ¶

85. “Failure to establish either element is fatal to the

claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-

Ohio-968, ¶ 14. Therefore, if one element is dispositive, a 7 LAWRENCE, 21CA9

court need not analyze both. State v. Madrigal,

,

(2000) (defendant’s failure to satisfy

one ineffective- assistance-of-counsel element “negates a

court’s need to consider the other”).

{¶14} The deficient performance part of an ineffectiveness

claim “is necessarily linked to the practice and expectations of

the legal community: ‘The proper measure of attorney performance

remains simply reasonableness under prevailing professional

norms.’” Padilla v. Kentucky,

,

,

(2010), quoting Strickland,

. Prevailing professional norms dictate that “a lawyer must

have ‘full authority to manage the conduct of the trial.’”

State v. Pasqualone,

,

,

, quoting Taylor v. Illinois,

,

,

(1988).

{¶15} Furthermore, “‘[i]n any case presenting an

ineffectiveness claim, “the performance inquiry must be whether

counsel’s assistance was reasonable considering all the

circumstances.”’” Hinton v. Alabama,

,

,

(2014), quoting Strickland,

. Accordingly, “[i]n order to show deficient performance,

the defendant must prove that counsel’s performance fell below 8 LAWRENCE, 21CA9

an objective level of reasonable representation.” State v.

Conway,

,

,

(citations omitted).

{¶16} Moreover, when considering whether trial counsel’s

representation amounts to deficient performance, “a court must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.”

Strickland,

. Thus, “the defendant must overcome

the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.”

Additionally, “[a] properly licensed attorney is presumed to

execute his duties in an ethical and competent manner.” State

v. Taylor, 4th Dist. Washington No. 07CA11,

,

citing State v. Smith,

,

(1985). Therefore, a defendant bears the burden to show

ineffectiveness by demonstrating that counsel’s errors were “so

serious” that counsel failed to function “as the ‘counsel’

guaranteed * * * by the Sixth Amendment.” Strickland,

; e.g., State v. Gondor,

, 2006-Ohio-

6679,

; State v. Hamblin,

,

(1988). 9 LAWRENCE, 21CA9

{¶17} To establish prejudice, a defendant must demonstrate

that a reasonable probability exists that “‘but for counsel’s

errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to

undermine the outcome.’” Hinton,

, quoting

Strickland,

; e.g., State v. Short,

,

,

; State v.

Bradley,

,

(1989), paragraph

three of the syllabus; accord State v. Spaulding,

,

,

, ¶ 91 (prejudice component

requires a “but for” analysis). Furthermore, courts ordinarily

may not simply presume the existence of prejudice but, instead,

must require a defendant to affirmatively establish prejudice.

State v. Clark, 4th Dist. Pike No. 02CA684,

, ¶

22; State v. Tucker, 4th Dist. Ross No. 01CA2592 (Apr. 2, 2002).

As we have repeatedly recognized, speculation is insufficient to

establish the prejudice component of an ineffective assistance

of counsel claim. E.g., State v. Tabor, 4th Dist. Jackson No.

16CA9,

; State v. Jenkins, 4th Dist. Ross

No. 13CA3413,

; State v. Simmons, 4th Dist.

Highland No. 13CA4,

; State v. Halley, 4th

Dist. Gallia No. 10CA13,

; State v. Leonard, 10 LAWRENCE, 21CA9

4th Dist. Athens No. 08CA24,

, ¶ 68; accord State

v. Powell,

,

,

, ¶

86 (argument that is purely speculative cannot serve as the

basis for an ineffectiveness claim).

{¶18} In the case sub judice, appellant alleges that trial

counsel rendered ineffective assistance of counsel by failing to

file an affidavit of indigency before sentencing that stated

appellant is unable to pay the mandatory fine. Appellant

contends that if trial counsel had filed an affidavit, the trial

court would have found the appellant to be indigent and unable

to pay the mandatory fine.

{¶19} A criminal defendant who seeks to show that trial

counsel provided ineffective assistance by failing to file an

affidavit alleging indigency and an inability to pay a mandatory

fine must establish both of the following: (1) counsel’s failure

to file an affidavit constitutes deficient performance; and (2)

a reasonable probability exists that the trial court would have

found the defendant to be indigent and unable to pay the

mandatory fine. State v. Davis,

, 2020-Ohio-

309,

.

{¶20} In the case at bar, assuming, arguendo, that trial

counsel’s failure to file an affidavit of indigency constitutes 11 LAWRENCE, 21CA9

deficient performance, we do not believe that appellant has

demonstrated that a reasonable probability exists that the trial

court would have found that appellant lacks the ability to pay

the mandatory fine.

R.C. 2929.18(B)(1) states:

If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender.

We note that “the burden is upon the offender to affirmatively

demonstrate that he or she is indigent and is unable to pay the

mandatory fine.” State v. Gipson,

,

(1998). A court must determine whether an offender

is indigent and unable to pay a mandatory fine should not limit

its inquiry to the offender’s circumstances “at the moment of

sentencing.”

. Instead, the court “can (and should)

[consider the offender’s] future ability to pay.”

Courts

generally have identified some of the following factors as

relevant when considering an offender’s ability to pay a fine:

(1) the offender’s age; (2) the offender’s employment history

and potential; (3) the offender’s education; (4) the offender’s

health; (5) the length of the offender’s prison term; (6) the 12 LAWRENCE, 21CA9

offender’s source of income; (7) the offender’s income

potential; (8) whether the offender is indigent; and (9) the

amount of the fine. State v. Lykins,

,

(4th Dist.) (citations omitted).

{¶21} Importantly, however, “a determination of indigency

alone does not rise to the level of creating a reasonable

probability that the trial court would have” found the defendant

unable to pay a mandatory fine.

. Accordingly, a

trial court’s determination that a defendant is indigent for

purposes of appointing counsel does not preclude the court from

determining that a defendant has the ability to pay a mandatory

fine. E.g., State v. Nitsche,

,

, ¶

76 (8th Dist.); State v. Palmison, 9th Dist. Summit No. 20854,

, ¶ 25. Likewise, a trial court is not precluded

from imposing a mandatory fine upon an offender who is sentenced

to a lengthy prison sentence. Nitsche at ¶ 76, citing State v.

Western,

,

, ¶ 57 (2d Dist.).

{¶22} Appellant contends that the facts shown in the record

establish that a reasonable probability exists that the trial

court would have found appellant indigent and unable to pay the

mandatory fine. Appellant points out that he has “a long

history of drug addiction, a lengthy criminal record * * * and 13 LAWRENCE, 21CA9

was unemployed both prior to and at the time of trial.” The

state, however, argues that the facts in the record fail to

support a conclusion that a reasonable probability exists that

the trial court would have found appellant indigent and unable

to pay the mandatory fine. The state notes that appellant told

Sergeant Chaffins that appellant “come[s] from a pretty good

family.” The state further observes that appellant informed

Chaffins: “I’ve got money. I ain’t gotta worry about selling

dope to supply my habit.” The state additionally points out

that appellant testified that he buys meth “almost daily,” that

he buys meth “all the time,” and that meth is “part of [his]

life.” The state also observes that appellant will be of

working age when released from prison and nothing in the record

shows appellant suffers from any mental or physical problems

that may inhibit his ability to earn income when released from

prison. The state further notes that appellant stated he has a

high-school degree and has completed some college.

{¶23} We agree with the state that appellant has failed to

show that a reasonable probability exists that the trial court

would have found him indigent and unable to pay the mandatory

fine if trial counsel had filed an affidavit before sentencing.

Appellant readily admitted that he has money and had no problems 14 LAWRENCE, 21CA9

affording his daily drug habit. If appellant has money and the

ability to fund his daily drug habit, we do not believe that the

trial court likely would have found that appellant lacks the

future ability to pay the mandatory fine. We further note that

appellant’s September 24, 2020 financial disclosure form

indicated that he earned $1,000 per month. At trial, appellant

stated that he earned money working on computers and cell

phones. Nothing in the record suggests appellant would be

unable to work in this same capacity after his prison term.

{¶24} Moreover, the record contains no indication that

appellant “would be unemployable upon his release, such as a

health or medical condition that would preclude him from future

employment.” State v. Freeman, 1st Dist. Hamilton No. C-180090,

, citing State v. Hale, 5th Dist. Perry No.

14-CA-00010,

(reasonable probability

existed that trial court would have waived the mandatory fine if

counsel had filed an affidavit of indigency due to defendant’s

medical conditions, including the use of an oxygen tank,

hypertension, COPD, IBS, coronary artery disease, obstructive

sleep apnea, a stroke, leg pains, and seizures); State v.

Campbell, 12th Dist. Warren No. CA2012-08-070,

(trial court did not err in waiving the mandatory fine 15 LAWRENCE, 21CA9

because defendant indigent and not able to work because of

diabetes, high blood pressure, nerve damage, torn rotator cuff,

depression, anxiety, acid reflux and need for drug treatment).

Instead, the record in the case sub judice shows that appellant

will be between 36 and 40 years old when released from prison

and has no health conditions that would prevent him from

obtaining gainful employment. See State v. Lenhert, 6th Dist.

Wood No. WD-08-078,

, ¶ 11 (“the trial court could

have determined that upon being released from prison, appellant

would be in his twenties, able to work and pursue productivity

and, therefore, would be able to pay the imposed sanction”);

State v. Johnson, 6th Dist. Lucas No. L-03-1046,

(defendant failed to demonstrate reasonable probability

trial court would have found him indigent when record did not

contain information about defendant’s finances except for

statement at arraignment that he did not have funds to hire

attorney).

{¶25} Thus, even though appellant is incarcerated and filed

an affidavit of indigency for purposes of obtaining appointed

appellate counsel, the record does not support a finding that

appellant lacks the future ability to pay the mandatory fine.

Thus, under these circumstances we are unable to conclude that a 16 LAWRENCE, 21CA9

reasonable probability exists that the trial court would have

found appellant indigent and unable to pay the mandatory fine if

trial counsel had filed a proper affidavit before sentencing.

We therefore do not agree with appellant that trial counsel

failed to provide appellant with the effective assistance of

counsel.

{¶26} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

II

{¶27} In his second assignment of error, appellant asserts

that the trial court erred by denying his motion to suppress the

methamphetamine discovered inside the locked safe located inside

his vehicle. Appellant contends that Sergeant Chaffins did not

have sufficient indicators of drug activity to give him probable

cause to open the locked safe.

{¶28} In general, appellate review of a trial court’s ruling

on a motion to suppress evidence involves a mixed question of

law and fact. E.g., State v. Castagnola,

, 2015-

Ohio-1565,

; State v. Burnside,

,

,

; State v. Moore,

,

(4th Dist.), ¶ 7. Appellate courts

thus “‘must accept the trial court’s findings of fact if they 17 LAWRENCE, 21CA9

are supported by competent, credible evidence.’” State v. Leak,

,

,

, quoting

Burnside at ¶ 8. Accepting those facts as true, reviewing

courts “‘independently determine as a matter of law, without

deference to the conclusion of the trial court, whether the

facts satisfy the applicable legal standard.’” Id., quoting

Burnside at ¶ 8.

{¶29} The Fourth and Fourteenth Amendments to the United

States Constitution, as well as Section 14, Article I of the

Ohio Constitution, protect individuals against unreasonable

governmental searches and seizures. Delaware v. Prouse,

,

,

(1979); State

v. Gullett,

,

(1992).

“[S]earches [and seizures] conducted outside the judicial

process, without prior approval by judge or magistrate, are per

se unreasonable under the Fourth Amendment—subject only to a few

specifically established and well-delineated exceptions.” Katz

v. United States,

,

,

(1967); State v. Roberts,

, 2006-

Ohio-3665,

.

{¶30} When a law enforcement officer has probable cause to

believe that a vehicle contains contraband, the officer may 18 LAWRENCE, 21CA9

search a validly stopped motor vehicle based upon the well-

established automobile exception to the warrant requirement.

State v. Moore,

,

(2000),

citing Maryland v. Dyson,

,

,

(1999). Probable cause exists when there is a “fair

probability that contraband or evidence of a crime will be found

in a particular place.” Illinois v. Gates,

,

,

(1983). Furthermore, “Ohio

courts have held that the production of drugs by an occupant of

a vehicle independently provides an officer with additional

probable cause to believe that the vehicle contains evidence of

contraband.” State v. Donaldson, 6th Dist. Wood No. WD-18-034,

; State v. Young, 12th Dist. Warren No.

CA2011-06-066,

, ¶ 32-33 (once driver admitted he

possessed marijuana, officers obtained probable cause to search

vehicle).

{¶31} Additionally, under the automobile exception to the

warrant requirement, law enforcement officers may search

containers located within the vehicle so long as they have

probable cause to believe that contraband or evidence may be

concealed inside the automobile. California v. Acevedo,

,

,

(1991); United 19 LAWRENCE, 21CA9

States v. Ross,

,

,

(1982). In other words, “[i]f probable cause justifies the

search of a lawfully stopped vehicle, it justifies the search of

every part of the vehicle and its contents that may conceal the

object of the search.”

. Consequently, when

officers have “probable cause to search for contraband in a car,

it is reasonable for police officers * * * to examine packages

and containers without a showing of individualized probable

cause for each one.” Wyoming v. Houghton

,

,

(1999); accord State v. Vega,

,

,

(officer could

lawfully open sealed envelope located inside vehicle when

officer possessed probable cause to search vehicle).

{¶32} In the case at bar, we do not agree with appellant

that Sergeant Chaffins lacked probable cause to search the

vehicle and its contents, including the locked safe, for

evidence of criminal activity. Chaffins discovered

methamphetamine inside a wallet that he had retrieved from

appellant’s person. Appellant also admitted that he possessed

drugs. The discovery of illegal drugs on appellant’s person

gave Chaffins probable cause to believe that the vehicle in

which appellant had been traveling contained drug-related 20 LAWRENCE, 21CA9

evidence. Once Chaffins obtained probable cause to search the

vehicle, he could lawfully search the entire vehicle and any

place where evidence could be concealed, including the locked

safe. The trial court did not, therefore, err by overruling

appellant’s motion to suppress evidence.

{¶33} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error.

III

{¶34} In his third assignment of error, appellant asserts

that his second-degree-felony aggravated drug possession

conviction is against the manifest weight of the evidence.

Appellant does not dispute that he possessed methamphetamine,

but instead disputes the precise amount of methamphetamine that

he possessed. Appellant contends that the greater weight of the

evidence shows that he possessed less than 15 grams of

methamphetamine and, thus, he is not guilty of second-degree-

felony aggravated drug possession. Appellant instead suggests

that the evidence supports a conviction for third-degree-felony

aggravated drug possession.

{¶35} We observe that the “question to be answered when a

manifest-weight issue is raised is whether ‘there is substantial

evidence upon which a jury could reasonably conclude that all 21 LAWRENCE, 21CA9

the elements have been proved beyond a reasonable doubt.’”

State v. Leonard,

,

,

, ¶ 81, quoting State v. Getsy,

, 193–194,

(1998), citing State v. Eley,

,

(1978), syllabus. A court that is considering a

manifest-weight challenge must “‘review the entire record, weigh

the evidence and all reasonable inferences, and consider the

credibility of witnesses.’” State v. Beasley,

,

,

, quoting State v.

McKelton,

,

,

; accord State v. Hundley,

, 2020-Ohio-

3775,

. The reviewing court must bear in

mind, however, that credibility generally is an issue for the

trier of fact to resolve. State v. Issa,

,

(2001); State v. Murphy, 4th Dist. Ross No.

07CA2953,

. “‘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,

,

,

, quoting

State v. Konya, 2nd Dist. Montgomery No. 21434,

, 22 LAWRENCE, 21CA9

¶ 6, quoting State v. Lawson, 2nd Dist. Montgomery No. 16288

(Aug. 22, 1997). As the court in Eastley v. Volkman,

,

,

, explained:

“‘[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption 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.’”

Id. at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland,

,

(1984), fn.3, quoting 5 Ohio

Jurisprudence 3d, Appellate Review, Section 60, at 191–192

(1978). Thus, an appellate court will generally 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,

; accord State v. Howard, 4th Dist. Ross No.

07CA2948,

(“We will not intercede as long as

the trier of fact has some factual and rational basis for its

determination of credibility and weight.”).

{¶36} Consequently, if the prosecution presented substantial

credible evidence upon which the trier of fact reasonably could

conclude, beyond a reasonable doubt, that the essential elements 23 LAWRENCE, 21CA9

of the offense had been established, the judgment of conviction

is not against the manifest weight of the evidence. E.g., Eley;

accord Eastley at ¶ 12, quoting Thompkins, 78 Ohio St.3d at 387,

quoting Black’s Law Dictionary 1594 (6th ed. 1990) (a judgment is

not against the manifest weight of the evidence when “‘”the

greater amount of credible evidence”’” supports it). A court

may reverse a judgment of conviction only if it appears that the

fact-finder, when it resolved 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.’” Thompkins, 78 Ohio St.3d at 387, quoting State v.

Martin,

,

(1st Dist. 1983);

accord

. 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.’” Thompkins, 78 Ohio St.3d at 387,

quoting Martin,

; accord State v. Clinton,

,

,

; State

v. Lindsey,

,

(2000). We

additionally note that “a verdict is not against the manifest

weight of the evidence simply because the fact-finder opts to 24 LAWRENCE, 21CA9

believe the state’s witnesses.” State v. Donohue, 4th Dist.

Ross No. 18CA3637,

.

{¶37} In the case sub judice, R.C. 2925.11(A) contains the

essential elements of the offense at issue, possession of drugs.

The statute states: “No person shall knowingly obtain, possess,

or use a controlled substance * * *.”

{¶38} R.C. 2925.11(C)(1)(c) further provides that a person

who knowingly obtains, possesses, or uses a schedule II

controlled substance, like methamphetamine, is guilty of second-

degree-felony aggravated drug possession when “the amount of the

drug involved equals or exceeds five times the bulk amount but

is less than fifty times the bulk amount.” R.C. 925.11(C)(1)(b)

states that aggravated drug possession is a third-degree felony

if the amount of drug involved equals or exceeds bulk amount but

is less than five times bulk amount.

{¶39} In the case at bar, the state presented evidence that

appellant possessed an amount of methamphetamine that equals or

exceeds five times the bulk amount. Taylor testified that five

times bulk amount is 15 grams and that appellant possessed a

total of 16.33 grams of methamphetamine. Appellant contends,

however, that his testimony shows that he possessed less than 15

grams of methamphetamine. At trial, appellant (1) denied that 25 LAWRENCE, 21CA9

he possessed the bag of methamphetamine located on the jail

floor, and (2) testified that the methamphetamine discovered in

his vehicle weighed less than 15 grams. Appellant stated that

the methamphetamine had been weighed when purchased and weighed

only 14.7 grams.

{¶40} Even if for purposes of argument, we agreed with

appellant that the evidence fails to support a finding that he

possessed the 1.10 grams of methamphetamine on the jailhouse

floor, the state nevertheless presented substantial, competent

and credible evidence that the remaining two bags weighed 15

grams or more. Taylor testified that she weighed the bags that

Sergeant Chaffins found in the safe located within appellant’s

vehicle and one bag contained 3.41 grams of methamphetamine and

the other contained 11.82 grams of methamphetamine. The

combined weight of methamphetamine totals 15.23 grams. Taylor’s

testimony, therefore, supports a finding that appellant

possessed more than five times the bulk amount.

{¶41} We recognize that appellant testified that he

purchased 14.7 grams of methamphetamine and his claim that he

did not possess more than 15 grams of methamphetamine. The

jury, however, was in the best position to assess witness

credibility and not obligated to believe appellant’s testimony. 26 LAWRENCE, 21CA9

The jury obviously chose to believe Taylor’s testimony and we

cannot conclude that the jury lost its way. A trier of fact is

free to believe all, part or none of the testimony from any

witness who appears before the trier of fact. Consequently,

after our review we do not believe that appellant’s conviction

for second-degree-felony aggravated drug possession is against

the manifest weight of the evidence.

{¶42} Accordingly, based upon the foregoing reasons, we

overrule appellant’s third assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED. 27 LAWRENCE, 21CA9

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and appellee recover of appellant the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Lawrence 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, it is continued for a period of 60 days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the 60-day period. The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the 45-day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said 60 days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:_______________________ Peter B. Abele, 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.