[Cite as State v. Howard, 2016-Ohio-7125.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                Plaintiff-Appellee,                :

v.                                                 :                No. 15AP-444
                                                                 (C.P.C. No. 13CR-1292)
Maurice J. Howard,                                 :
                                                               (REGULAR CALENDAR)
                Defendant-Appellant.               :

                                             D E C I S I O N

                                  Rendered on September 30, 2016

                On brief: Todd W. Barstow, for appellant. Argued:
                Todd W. Barstow.

                On brief: Ron O'Brien, Prosecuting Attorney, and Valerie B.
                Swanson, for appellee. Argued: Valerie B. Swanson.

                  APPEAL from the Franklin County Court of Common Pleas

HORTON, J.
        {¶ 1} Defendant-appellant, Maurice J. Howard, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas. For the
following reasons, we affirm the trial court's judgment.
I. Facts and Procedural History
        {¶ 2} On March 8, 2013, the Franklin County Grand Jury indicted appellant on:
one count of aggravated possession of oxycodone, in violation of R.C. 2925.11, a felony of
the second degree; one count of possession of cocaine, in violation of R.C. 2925.11, a
felony of the third degree; one count of possession of hydrocodone, in violation of R.C.
2925.11, a felony of the fourth degree; one count of possession of benzylpiperazine
("BZP"), in violation of R.C. 2925.11, a felony of the fifth degree; and, one count of having
a weapon while under disability, a violation of R.C. 2923.13, a felony of the third degree.
The first four counts contained one-year firearm specifications.
No. 15AP-444                                                                                2

       {¶ 3}   Appellant filed several motions to suppress, which the trial court overruled.
(Aug. 26, 2014 Tr. at 20.) The trial court conducted a jury trial. At the trial, the testimony
revealed that the charges arose out of an incident that occurred on December 1, 2010.
       {¶ 4} James Bajus, a Special Agent with the U.S. Department of Justice Bureau of
Alcohol, Tobacco, Firearms & Explosives ("ATF") testified that he and Special Agent Kirk
Howard were conducting surveillance in an undercover investigation that did not involve
appellant. They were sitting in an unmarked government vehicle, parked on the street
near appellant's apartment. Bajus testified he saw appellant exit his apartment and
converse with people in a car parked in the apartment building parking lot. Both agents
testified appellant was carrying a pair of tennis shoes and a large canister of chemical
mace. Then appellant approached the agents' car. Both special agents commanded
appellant to back away from the vehicle several times. Appellant approached the rear
passenger side of the vehicle and looked in the window. In the back seat were the agents'
ballistic vests marked "ATF Police." The agents were concerned for their safety and exited
the vehicle with their guns drawn. They detained appellant and requested assistance from
other officers. When searching appellant, they found narcotics concealed in the tennis
shoes appellant was carrying. They obtained a search warrant for appellant's apartment
and found a loaded firearm, a large quantity of ammunition, numerous pills, suspected
marijuana, and crack cocaine.
       {¶ 5} Columbus Police Detective Jerry Orick testified that he was supporting
Special Agents Bajus and Howard on surveillance detail. Special Agent Howard requested
back-up support and Detective Orick responded. His vehicle was only a couple blocks
away. Detective Orick testified he found $840 in appellant's wallet. Detective Orick
interviewed a few other people at the scene and, based upon the interviews, requested a
search warrant for appellant's apartment. While the officers were executing the search
warrant, Christopher Danielson, appellant's roommate, requested entrance into the
apartment to retrieve his tattoo equipment. Several other officers testified that they
helped search the apartment, including Detective Mike Malloy, who testified he found
$6,400 in the apartment.
       {¶ 6} At the trial, during the state's questioning of Detective Malloy, the
prosecutor stopped the questioning and conferred with defense counsel. (Feb. 11-13, 2015
No. 15AP-444                                                                           3

Tr. Vol. 2 at 202.) Then the attorneys had the following discussion with the trial judge,
outside the hearing of the jury:
              [Prosecutor]: Judge, I was going to have Detective Malloy
              give testimony as to the bulk amounts of drugs just so that
              it's in the record. The bulk amount is relevant to the defense
              levels. Defense counsel is suggesting we do it as an
              instruction. That is fine with me.

              THE COURT: Yes. I have done that in the last trial. I did
              that in the last trial.

              [Prosecutor]: Absolutely. That's fine. I just wanted to make
              sure everybody was comfortable with that.

              THE COURT: Okay. Let me put it this way: For purposes of
              this, you would stipulate the bulk amount because it's as a
              matter of law.

              [Defense Attorney]: It's smaller.

              THE COURT: Well, I suppose the question that you would
              have is you can make a Rule 29 motion saying he didn't
              prove bulk amount, but once you have a weight or a number
              of doses, you can --

              [Defense Attorney]: Once the chemist people come in here
              to testify as to the count, that's done.

              THE COURT: Yes. I agree the bulk amount would be a
              question of law, which will be fine. Okay.

(Tr. Vol. 2 at 203-04.)
       {¶ 7} Kelly Ducat ("Ducat"), a forensic scientist in the Columbus Police Crime
Lab, testified that he tested the firearm found in appellant's apartment and it was
operable. Reagan Anderson ("Anderson"), a forensic scientist in the Columbus Police
Crime Lab, testified that he tested the suspected drugs found in the shoes and in the
apartment. The chemical analysis revealed the suspected drugs were cocaine, oxycodone,
hydrocodone, BZP, and marijuana.       Anderson testified that all the cocaine analyzed
weighed 15.843 grams. (Tr. Vol. 2 at 218.) Anderson testified that Exhibit 4 contained
1.909 grams of marijuana. Two other bags were visually consistent with Exhibit 4. Exhibit
No. 15AP-444                                                                               4

5 contained 77 oxycodone-hydrochloride tablets (15 milligrams "mg") for a total weight of
7.687 grams. Exhibit 5 also contained 52 hydrocodone bitartrate (5-mg) with 500-mg
acetaminophen tablets, weighing a total of 32.738 grams. Anderson testified that
oxycodone is a Schedule II substance and hydrocodone and acetaminophen products
were Schedule III substances.
       {¶ 8} Anderson testified that Exhibit 20 contained two partial plastic bags with
opaque substances inside identified as cocaine base. Exhibit 21 contained three bags of
marijuana. Exhibit 22 contained 233 green, circular tablets each identified as containing
15-mg of oxycodone hydrochloride.        One tablet weighed 0.127 grams.         Exhibit 24
contained 30 hydrocodone bitartrate (5-mg) and 500-mg acetaminophen tablets. One
tablet weighed 0.642 grams. Exhibit 25 contained four tablets identified as BZP.
       {¶ 9} The parties stipulated that appellant was convicted of felonious assault, a
felony of the second degree, in July 1999.
       {¶ 10} Appellant was the only defense witness. He claimed the drugs and the
firearm belonged to his roommate, Christopher Danielson. He denied knowing that the
drugs or firearm were in the apartment. He testified that his friends arrived to give him a
ride to purchase parts to repair his van. His roommate, Danielson, had called him and
asked him to bring the shoes outside and Danielson would meet him on the street to
retrieve them. Appellant stated he approached the car thinking Danielson was inside, but
he did not hear the Special Agents yelling at him to retreat because the car windows were
closed. He denied knowledge of drugs inside the shoe and did not know Danielson had
drugs or the firearm inside the apartment.
       {¶ 11} At the close of the evidence, the trial court instructed the jury as to Count 1
of the indictment, the aggravated possession of oxycodone charge, as follows:
              Before you can find the defendant guilty of this offense, you
              must find beyond a reasonable doubt that on or about the 1st
              day of December 2010, and in Franklin County, Ohio, the
              defendant knowingly possessed a controlled substance
              included in Schedule II, to wit, or specifically: Oxycodone, in
              an amount equal to or exceeding 5 times the bulk amount,
              but less than 50 times the bulk amount.

              ***
No. 15AP-444                                                                           5

              Bulk amount means 30 unit doses of oxycodone.

(Tr. Vol. 2 at 337-39.)
       {¶ 12} The trial court instructed the jury regarding Count 3 of the indictment,
possession of hydrocodone, as follows:
              Before you can find the defendant guilty of this offense, you
              must find beyond a reasonable doubt that on or about the 1st
              day of December, 2010, and in Franklin County, Ohio, the
              defendant knowingly possessed a controlled substance
              included in Schedule III, to wit: Hydrocodone, in an amount
              equal to or exceeding the bulk amount, but less than five
              times the bulk amount.

              ***

              Hydrocodone is a Schedule III controlled substance.

              The bulk amount for this controlled substance is 40 unit
              doses.

(Tr. Vol. 2 at 342.)
       {¶ 13} The jury found appellant guilty of the drug possession counts and one count
of having a weapon while under disability. The jury found appellant not guilty of the
firearm specifications. The trial court sentenced appellant to 7 years of imprisonment on
Count 1 of the indictment; 12 months of imprisonment on each of Counts 2, 3 and 4 of the
indictment; and 18 months of imprisonment on Count 5 of the indictment. Counts 1 and 5
of the indictment were to be served consecutive to each other but concurrent with Counts
2, 3 and 4 of the indictment. The total sentence imposed was 8 years and 6 months of
imprisonment.
II. Assignments of Error
       {¶ 14} Appellant filed a timely notice of appeal and raised the following
assignments of error for our review:
              I. THE TRIAL COURT ERRED AND DEPRIVED
              APPELLANT OF DUE PROCESS OF LAW AS
              GUARANTEED BY THE FOURTEENTH AMENDMENT TO
              THE UNITED STATES CONSTITUTION AND ARTICLE
              ONE SECTION TEN OF THE OHIO CONSTITUTION BY
              FINDING HIM GUILTY OF AGGRAVATED POSSESSION
No. 15AP-444                                                                                6

                OF DRUGS; POSSESSION OF DRUGS; AND HAVING
                WEAPON UNDER DISABILITY AS THOSE VERDICTS
                WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE
                AND WERE ALSO AGAINST THE MANIFEST WEIGHT OF
                THE EVIDENCE.

                II. THE TRIAL COURT COMMITTED PLAIN ERROR BY
                FAILING TO CORRECTLY INSTRUCT THE JURY ON THE
                REQUISITE AMOUNT OF OXYCODONE NEEDED TO
                PROVE A SECOND DEGREE FELONY AND THE
                REQUISITE AMOUNT OF HYDROCODONE NEEDED TO
                PROVE A FOURTH DEGREE FELONY.

III. Discussion
        {¶ 15} By his first assignment of error, appellant contends that the trial court
deprived him of his due process rights by finding him guilty of aggravated possession of
drugs and possession of drugs1 because those verdicts were not supported by sufficient
evidence and were against the manifest weight of the evidence.
        {¶ 16} Whether evidence is legally sufficient to sustain a verdict is a question of
law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997), superseded by constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).
Sufficiency is a test of adequacy. Id. The evidence is construed in the light most favorable
to the prosecution to determine whether a rational trier of fact could have found the
essential elements of the offense proven beyond a reasonable doubt. State v. Jenks, 61
Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded on other grounds; State
v. Conley, 10th Dist. No. 93AP-387 (Dec. 16, 1993). When reviewing the sufficiency of the
evidence, the court does not weigh the credibility of the witnesses. State v. Yarbrough, 95
Ohio St.3d 227, 2002-Ohio-2126, ¶ 79. "[T]he mere existence of conflicting evidence
cannot make the evidence insufficient as a matter of law." State v. Murphy, 91 Ohio St.3d
516 (2001).
        {¶ 17} Sufficiency of the evidence and manifest weight of the evidence are distinct
concepts; they are "quantitatively and qualitatively different." Thompkins at 386. When
presented with a manifest weight argument, the appellate court engages in a limited
1 Although listed in his assignment of error, appellant made no argument that there was insufficient
evidence regarding his conviction for having a weapon under disability nor that it was against the manifest
weight of the evidence.
No. 15AP-444                                                                                7

weighing of evidence to determine whether sufficient competent, credible evidence
permits reasonable minds to find guilt beyond a reasonable doubt. Conley; Thompkins at
387. "When a court of appeals reverses a judgment of a trial court on the basis that the
verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror'
and disagrees with the factfinder's resolution of the conflicting testimony." Thompkins.
In the manifest weight analysis, the appellate court considers the credibility of the
witnesses and determines whether 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."   Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
Determinations of credibility and weight of the testimony remain within the province of
the trier of fact. State v. DeHass, 10 Ohio St.2d 212 (1967), paragraph one of the syllabus.
       {¶ 18} R.C. 2925.11 prohibits a person from knowingly obtaining, possessing or
using a controlled substance. Oxycodone is a Schedule II controlled substance. R.C.
3719.01(C) (defining "controlled substance" as including any Schedule II or Schedule III
substance). R.C. 3719.41(Schedule II)(A)(1)(n) lists oxycodone as a Schedule II substance.
Possession of oxycodone is a felony of the second degree if "the amount of [oxycodone]
involved equals or exceeds five times the bulk amount but is less than fifty times the bulk
amount." R.C. 2925.11(C)(1)(c). The "bulk amount" of oxycodone is "[a]n amount equal
to or exceeding twenty grams or five times the maximum daily dose in the usual dose
range specified in a standard pharmaceutical reference manual." R.C. 2925.01(D)(1)(d).
Former R.C. 2925.01(M)(1)-(3) defines "standard pharmaceutical reference manual" as
"the current edition, with cumulative changes if any, of any of the following reference
works: (1) 'The National Formulary'; (2) 'The United States Pharmacopeia,' prepared by
authority of the United States Pharmacopeial Convention, Inc.; (3) other standard
references that are approved by the state board of pharmacy."
       {¶ 19} Appellant was also charged with knowingly obtaining, possessing or using
hydrocodone, a Schedule III substance, in an amount equal to or exceeding the bulk
amount but less than five times the bulk amount. Former R.C. 2925.11(C)(2)(b). The
bulk amount for hydrocodone is "an amount equal to or exceeding twenty grams or thirty
times the maximum daily dose in the usual dose range specified in a standard
pharmaceutical reference manual of a compound, mixture, preparation, or substance that
No. 15AP-444                                                                                8

is or contains any amount of a Schedule III opiate or opium derivative." Former R.C.
2925.01(D)(3).2
        {¶ 20} Appellant presents two arguments regarding sufficiency and manifest
weight. He argues that the officers who testified were confused regarding the locations of
the drugs found in the apartment and that the state failed to prove the bulk amount of the
drugs because the state presented evidence as to the weight of oxycodone and
hydrocodone, but not as to the maximum daily dose. Appellant argues that the state did
not prove the amount of oxycodone and hydrocodone that the officers found and this
court should reverse appellant's convictions of possession and remand for further
proceedings because the state only proved a felony of the third degree and a misdemeanor
of the first degree.
        {¶ 21} Appellant argues that the state did not prove he possessed the substances
inside the apartment because the officers were unable to pinpoint exact locations of the
items inside the apartment. Appellant argues that the apartment was a two-bedroom
apartment, he and his roommate had separate bedrooms, and the drugs and firearm
belonged to his roommate.
        {¶ 22} The officers testified regarding the items found in the apartment. They were
able to identify the exhibits of drugs and the firearm and discuss where they found the
items. Officer Adam Klontz testified he found the firearm on the side shelves of the
entertainment center in the family room. Detective Malloy testified he found $6,400 in a
pair of shoes in the northeast bedroom. Officer Brett Slaughter testified he found the
suspected drugs in a trash bag in the west bedroom. (Tr. Vol. 2 at 188.) The state
demonstrated that the lease of the apartment was in appellant's name and appellant
received mail at that address.
        {¶ 23} The jury heard all the testimony and apparently discounted any confusion
regarding the exact location of the drugs inside the apartment, which is within its
province to do. The trier of fact is in the best position to take into account any
inconsistencies, the demeanor of the witnesses, and the manner of testifying to determine
whether the witnesses' testimony is credible. State v. Williams, 10th Dist. No. 02AP-35,

2Appellant argues that the bulk amount for hydrocodone is defined in R.C. 2925.01(D)(2), but it is actually
R.C. 2925.01(D)(3) for a Schedule III opium derivative.
No. 15AP-444                                                                              9

2002-Ohio-4503, ¶ 58. "While the jury may take note of the inconsistencies and resolve
them or discount them accordingly, see DeHass, supra, such inconsistencies do not
render defendant's conviction against the manifest weight or sufficiency of the evidence."
State v. Nivens, 10th Dist. No. 95APA09-1236 (May 28, 1996). "The jury is the sole judge
of the weight of the evidence and the credibility of witnesses. It may believe or disbelieve
any witness or accept part of what a witness says and reject the rest." State v. Antill, 176
Ohio St. 61, 67 (1964). Appellant's first argument in his first assignment of error is not
well-taken.
       {¶ 24} Appellant's second argument within his first assignment of error is that the
state failed to introduce sufficient evidence to support his possession conviction because
the state failed to prove the bulk amount of the drugs. Rather than having the state
produce testimony concerning the bulk amount of the drugs, the trial court instructed the
jury regarding the bulk amount. The state's forensic chemist identified the number of
tablets and the total weight of oxycodone and hydrocodone that appellant possessed, but
appellant contends that the state did not introduce evidence that would permit the jury to
determine what constitutes a "maximum daily dose" of either substance. Rather, the trial
court provided the bulk amount definition in its jury instructions. As previously stated,
the discussion proceeded, as follows:
              [Prosecutor]: Judge, I was going to have Detective Malloy
              give testimony as to the bulk amounts of drugs just so that
              it's in the record. The bulk amount is relevant to the defense
              levels. Defense counsel is suggesting we do it as an
              instruction. That is fine with me.

              THE COURT: Yes. I have done that in the last trial. I did
              that in the last trial.

              [Prosecutor]: Absolutely. That's fine. I just wanted to make
              sure everybody was comfortable with that.

(Tr. Vol. 2 at 203-04.)
       {¶ 25} And the trial court gave the following instructions to the jury:
              Bulk amount means 30 unit doses of oxycodone.

              ***
No. 15AP-444                                                                               10

              Hydrocodone is a Schedule III controlled substance.

              The bulk amount for this controlled substance is 40 unit
              doses.

(Tr. Vol. 2 at 339-42.)
       {¶ 26} In State v. Zoltan, 7th Dist. No. 11 MA 160, 2014-Ohio-3788, ¶ 44-47, the
court recognized that the statute provides two methods for the state to prove bulk
amount. The first method involves testimony regarding the weight of the drugs. The
second method to establish bulk amount is to introduce evidence that the drugs equaled
or exceeded five times the maximum daily dose in the usual dose range specified in a
standard pharmaceutical reference manual. The Zoltan court recognized a division in the
appellate courts concerning this approach. Some appellate courts have held that what
constitutes the maximum daily dose is a question of fact which must be proved in one of
three ways:     "(1) by stipulation, (2) by expert testimony as to what a standard
pharmaceutical reference manual prescribes, or (3) by a properly proven copy of the
manual itself." Id. at ¶ 47, citing State v. Huber, 187 Ohio App.3d 697, 2010-Ohio-2919, ¶
8 (2d Dist.); State v. Montgomery, 17 Ohio App.3d 258 (1st Dist.1984). Other appellate
districts have held that the trial court can take judicial notice of what constitutes the bulk
amount by reference to a standard pharmaceutical reference manual and instruct the jury
accordingly. State v. Fisher, 5th Dist. No. 05CAA04, 2006-Ohio-2201, ¶ 13-22; State v.
Cole, 12th Dist. No. CA2004-01-007, 2005-Ohio-2274, ¶ 29-30; State v. Drummond, 3d
Dist. No. 16-11-08, 2012-Ohio-1468, ¶ 15; State v. Feltner, 2d Dist. No. 88-CA-34 (Aug.
16, 1989); State v. Morales, 5th Dist. No. 2004 CA 68, 2005-Ohio-4714. In State v.
Johnson, 10th Dist. No. 13AP-997, 2015-Ohio-3248, ¶ 76, this court acknowledged that, at
trial, the parties "stipulated that the bulk amount of Oxycodone 30 milligram pills, a
Schedule II substance, is 15 unit doses or 15 pills."
       {¶ 27} In this case, we have a stipulation and a jury instruction. The parties
stipulated that the trial court should instruct the jury regarding the bulk amount. The
prosecutor informed the trial court that defense counsel suggested an instruction rather
than have the state provide testimony. Appellant argues that we should not interpret
defense counsel's silence on the record as a stipulation. While in some cases that may be
No. 15AP-444                                                                              11

true, here, after conferring with defense counsel, the prosecutor indicated that it was
defense counsel's idea to provide the bulk amount to the jury through an instruction. If
defense counsel did not agree to that interpretation, he did, at that point, have an
obligation to object.
       {¶ 28} In State v. Tate, 138 Ohio St.3d 139, 144, 2014-Ohio-44, the Supreme Court
of Ohio defined a "stipulation in law" as "nothing more than agreement as to the veracity
of a fact in issue. Black's Law Dictionary 1550 (9th Ed.2009) defines 'stipulation' as a
'voluntary agreement between opposing parties concerning some relevant point; esp., an
agreement relating to a proceeding, made by attorneys representing adverse parties to the
proceeding.' " Defense counsel did not object and permitted the prosecutor to inform the
trial court that he suggested and agreed to the instruction.
       {¶ 29} In addition to the stipulation, in this case, the state also presented
Anderson's laboratory analysis report. (Ex. K.) In the report, Anderson designated the
weight of each tablet of oxycodone and hydrocodone and specified that each tablet
constituted one unit dose. Anderson also testified and the report specified how many
tablets of each drug the officers found. Thus, the jury had the stipulation and the report
to determine the bulk amount.
       {¶ 30} After reviewing the evidence presented at trial, and viewing it in a light most
favorable to the prosecution, we conclude, "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. Appellant's second argument regarding his first assignment of error is
not well-taken, and as such, appellant's first assignment of error is overruled.
       {¶ 31} In his second assignment of error, appellant contends that the trial court
committed plain error by failing to instruct the jury correctly on the requisite amount of
oxycodone needed to prove a felony of the second degree and the requisite amount of
hydrocodone needed to prove a felony of the fourth degree.
       {¶ 32} Pursuant to Crim.R. 30(A), a party may not assign as error the giving or
failure to give any instruction unless the party objected before the jury retired. However,
Crim.R. 52(B) enables an appellate court to take notice of plain error without an
objection. For an error to constitute "plain error" under Crim.R. 52(B), it must satisfy
three prongs: (1) there must be an error, meaning a deviation from a legal rule, (2) the
No. 15AP-444                                                                              12

error must be "plain," meaning an "obvious" defect in the trial proceedings, and (3) the
error must have affected "substantial rights," meaning the error must have affected the
outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (Jan. 9, 2002). An appellate
court recognizes plain error with the utmost caution, under exceptional circumstances,
and only to prevent a miscarriage of justice. State v. Pilgrim, 184 Ohio App.3d 675, 2009-
Ohio-5357, ¶ 58 (10th Dist.), citing State v. Diar, 120 Ohio St.3d 469, 2008-Ohio-6266, ¶
139.
       {¶ 33} Appellant argues that the trial court incorrectly instructed the jury as to the
bulk amount. Appellant contends that the trial court needed to instruct the jury as to the
weight of the drug necessary to prove bulk amount. However, the statute sets forth that
the prosecution has the option to prove weight or the maximum daily dose. The trial
court was not required to instruct only as to weight. See Zoltan, where the trial court
found the statute provides two methods to prove bulk amount and the state has "the
option of proving appellant sold the bulk amount by either weight or by reference to the
maximum daily dosage." Id. at ¶ 44.
       {¶ 34} Further, appellant argued during oral argument that the trial court erred in
using "unit dose" and not "maximum daily dose" in its instructions. Appellant has
provided no evidence under a plain error analysis that the outcome of the trial would have
been different if the trial court had utilized "maximum daily dose" instead of "unit dose."
       {¶ 35} In State v. Whitfield, 9th Dist. No. 11CA010048, 2012-Ohio-5019, the
defendant argued the language in R.C. 2925.01(D)(1)(d) did not permit the prosecution to
convert the "maximum daily dose in the usual dose range" into different doses, or "unit
doses." The Ninth District Court found the trial court did not err in its determination that
the bulk amount of oxycodone is six 80-mg tablets and that five times the bulk is thirty
80-mg tablets.
       {¶ 36} In this case, the jury had the ability to determine the bulk amount from the
evidence and the jury instructions. The evidence showed that appellant possessed 310
oxycodone tablets (77 tablets in Ex. 5 and 233 tablets in Ex. 22) and Exhibit K specified
that each tablet constituted one unit dose. The jury instruction provided that the bulk
amount was 30 unit doses. The jury was capable of calculating the maximum daily dose
because 30 unit doses equals the maximum daily dose multiplied by 5 (30 tablets ÷ 5 =
No. 15AP-444                                                                           13

6). The jury then was able to determine that 310 tablets was more than 150 tablets (5 x 30
= 150) tablets and less than 1,500 tablets (50 x 30 = 1,500 maximum for a felony of the
second degree). Similarly, appellant possessed 82 hydrocodone bitartrate with
acetaminophen tablets (Ex. 5 contained 52 tablets and Ex. 24 contained 30 tablets). The
instruction provided that the bulk amount is 40 unit doses (40 ÷ 5 = 8 maximum daily
dose). Thus, the jury was able to determine that appellant possessed an amount equal to
or exceeding the bulk amount (40 tablets) but less than five times the bulk amount (40 x 5
= 200).
      {¶ 37} Upon review, we conclude that the jury was able to calculate the bulk
amount given the evidence and the jury instructions, although the trial court utilized
different language. Appellant has not demonstrated that the outcome of the trial was
affected and thus, he has not demonstrated plain error. His second assignment of error is
overruled.
IV. Disposition
      {¶ 38} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                     Judgment affirmed.
                  DORRIAN, P.J. and LUPER SCHUSTER, J., concur.
                             _________________


Order entered August 15, 2019

                                          In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                   No. 05-19-00497-CV

                        TUNAD ENTERPRISES INC., Appellant

                                            V.

                     MARTIN PALMA D/B/A LIZ PIZZA, Appellee

                     On Appeal from the 417th Judicial District Court
                                  Collin County, Texas
                         Trial Court Cause No. 417-00618-2016

                                         ORDER
       Before the Court is appellee’s August 14, 2019 unopposed motion for extension of time

to file his brief. We GRANT the motion and ORDER appellee’s brief due on or before October

10, 2019.

                                                   /s/   BILL WHITEHILL
                                                         JUSTICE


350 B.R. 38 (2006)
In re Charles Francis McPHERSON, Jr., and Sherri Lee McPherson, Debtors.
Herbert L. Beskin, Chapter 13 trustee,
v.
Charles Francis McPherson, Jr., and Sherri Lee McPherson, Debtors.
No. 06-60243-13.
United States Bankruptcy Court, W.D. Virginia, Lynchburg Division.
July 31, 2006.
*39 *40 Herbert L. Beskin, for the Chapter 13 trustee.
H. David Cox, Cox Law Group, Lynchburg, Va., for the debtors.

MEMORANDUM
WILLIAM E. ANDERSON, Bankruptcy Judge.
This matter comes before the Court on the chapter 13 trustee's objection to the plan of reorganization filed by Charles Francis McPherson, Jr., and Sherri Lee McPherson ("the Debtors") on the grounds that it does not provide for the payment of all of the Debtors' projected disposable income during the five-year pendency of their proposed plan of reorganization as required by 11 U.S.C. § 1325(b)[1]. Specifically, the trustee objects to the Debtors' calculation under 11 U.S.C. § 707(b)(2)(A)(iii)[2] of the amount of a deduction made from their income based on a secured claim. The Debtors oppose the motion to dismiss and assert that they have correctly interpreted Section 707(b)(2)(A)(iii).
This Court has jurisdiction over this matter. 28 U.S.C. § 1334(a) & 157(a). This proceeding is a core proceeding. 28 U.S.C. § 157(b)(2)(A) & (L). This Court may enter a final order. This memorandum shall constitute the Court's findings of fact and conclusions of law as directed by Fed.R.Civ.P. 52, which is made applicable in this proceeding by Fed. R. Bankr.P. 7052.

FACTS
The Debtors' Schedules. On February 28, 2006, the Debtors filed a chapter 13 petition. On March 15, 2006, they filed their schedules and a plan of reorganization. On their Schedule I, the Debtors scheduled gross monthly income in the amount of $5,604.24 and net monthly income in the amount of $4,338.25. On their Schedule J, the Debtors scheduled monthly expenses of $4,088.00. The Debtors' gross annual income according to their Schedule I is $67,250.88. The Debtors have one dependent.
The Debtors scheduled creditor Best Buy Co. Inc., ("Best Buy") on Schedule D as a secured creditor with a total claim in the amount of $2,216.00. They valued a computer ("the Collateral") securing the claim at $100.00. They scheduled the Best Buy claim as a secured claim in the amount of $100.00 and scheduled the balance of the claim, $2,116.00, as unsecured. As of the date of petition, the Debtors were obligated under a contract ("the Best Buy Contract") to make 24 additional *41 monthly payments to Best Buy in the amount of $169.00 each. The total amount of the 24 payments due under the contract was $4,056.00.
The Debtors' Form B22C. The Debtors also filed a "Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income", Official Form B22C ("Form B22C"), as required by Fed. R. Bankr.P. 1007(b)(6)[3]. Their Form B22C indicates that their total monthly income is $5,780.00, or $69,360.00[4] per year. This amount is more than $63,177.00, the median income for a family of three in Virginia.
At line 47 of Form B22C, a debtor is instructed to provide "the total of all amounts contractually due to each Secured Creditor in the 60 months following"[5] the date the petition is filed. The Debtors listed the monthly payment attributable to the secured portion of the Best Buy claim at $67.60. The Debtors calculated this amount by dividing the total amount of all payments due to Best Buy, $4,056.00, by 60.
The Debtors' Proposed Plan. The proposed plan provides for payments of $60.00 per week for a period of 60 months[6] (260 weeks) for a payment total of $15,600.00. It provides that the Debtors will pay Best Buy six monthly payments in the amount of $18.20 each on account of the secured portion of its claim ($100.00) with interest accruing at 7% per annum. The total proposed payment to Best Buy on account of the secured portion of its claim is $109.20. The plan also provides that the Debtors will pay Best Buy its pro rata share of the total payments to be made to unsecured creditors. This will amount to 27% of the unsecured portion of Best Buy's claim, or approximately $571.32. The plan provides that the Debtors will pay a total of $680.52 to Best Buy.
In calculating the amount of their disposable income to be distributed to unsecured creditors under the plan, the Debtors deduct $67.00 per month from their net income on account of the secured portion of the Best Buy claim. They calculate this amount by dividing the total amount of all remaining payments due under the Best Buy Contract, $4,056.00, by the number of months in the proposed plan, 60.
The Objection of the Chapter 13 Trustee. The trustee objects to the Debtors' proposed plan. He argues that they are only entitled to deduct the amount that they propose to actually pay Best Buy on account of the secured portion of its claim when calculating their disposable income. *42 The trustee argues that the expense amount attributable to the secured claim in this case should be $1.82 per month. He calculates this amount by dividing the total amount of all proposed plan payments to Best Buy on account of its secured claim, $109.20, by the number of months in the proposed plan, 60.

DISCUSSION
The chapter 13 trustee objects to confirmation of the Debtors' plan on the grounds that it does not provide that all of the Debtors' projected disposable income received during the pendency of the plan will be applied to make payments to unsecured creditors. The objection is based on 11 U.S.C. § 1325(b)(1)-(3)[7], which provides the calculation method that an above-median income debtor must use to determine the minimum monthly amount that he or she must pay unsecured creditors under a proposed plan. The issue is the method to be used in calculating the amount of the deduction to be made from income on account of secured debt in a chapter 13 case when calculating the disposable income that is to be paid to unsecured creditors. Specifically, the trustee argues that the Debtors have deducted more than the permitted amount on the basis of the secured portion of the Best Buy claim.
The Chapter 13 Disposable Income Test for Above-Median Income Debtors. If the chapter 13 trustee objects to a plan, the Court may not confirm that plan unless (1) the plan provides for the payment of each unsecured claim in full or (2) the plan *43 provides that all of the debtor's "projected disposable income" to be received during the pendency of the plan will be applied to make payments to the unsecured creditors. 11 U.S.C. § 1325(b)(1).
"Projected disposable income" is not defined in the Bankruptcy Code. "Disposable income" means the "current monthly income" received by the debtor less "amounts reasonably necessary to be expended for support" of the debtor and his or her dependents. 11 U.S.C. § 1325(b)(2)[8]. "Current monthly income" is defined as the "average monthly income . . . that the debtor receives . . . during the 6-month period ending on the last day of the calendar month immediately preceding the date" of petition. 11 U.S.C. § 101(10A)[9]. The "amounts reasonable necessary to be expended for support" under Subsection 1325(b)(2) are to be determined in accordance with 11 U.S.C. § 707(b)(2)(A) & (B) if the debtor's "current monthly income", when multiplied times twelve, is greater than the median annual income for a family of similar size in the debtor's state, which is true in this case[10]. 11 § 1325(b)(3).
To summarize, all of a debtor's "projected disposable income" to be received during the pendency of the plan must be applied to make payments to the unsecured creditors. "Disposable income" means a debtor's "current monthly income" less "amounts reasonably necessary to be expended for support" of the debtor and any dependents. The word "projected" in the phrase "projected disposable income" modifies each of the component parts of "disposable income", that is, it modifies "current monthly income" and it modifies "amounts reasonably necessary to be expended for support". "Projected disposable income", then, means the "projected current monthly income" less "projected amounts reasonably necessary to be expended for support" where "reasonably necessary to be expended for support" is *44 to be determined in accordance with Subparagraphs 707(b)(2)(A) & (B).
The Debtors' projected "current monthly income" is not in dispute. We are only concerned with the effect of the Best Buy claim on the calculation of the Debtors' projected disposable income. Consequently, we focus on the phrase "projected . . . amounts reasonably necessary to be expended for support". In that phrase, the word "amounts" is modified by three terms: (1) the adjective "projected"; (2) the adjective phrase "reasonably necessary for . . . support"; and (3) the infinitive phrase "to be expended". The Court must give meaning and import to each of these three terms. See Negonsott v. Samuels, 507 U.S. 99, 106, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993).
All of these three modifying terms indicate that the deductions in question concern amounts that will be paid in the future. First, we consider the effect of the word "projected". One Court has considered the word "projected" when examining the meaning of "projected disposable income" in the context of Section 1325(b). See In re Jass, 340 B.R. 411 (Bankr. D.Utah 2006)[11]. Although the Court was addressing the modifying effect of the word "projected" on the phrase "current monthly income", its observation concerning the meaning of "projected" in the context of Section 1325(b) is relevant.
. . . The word "projected" means "No calculate, estimate, or predict (something in the future), based on present data or trends." Thus, the word "projected" is future-oriented.
Jass, 340 B.R. at 415 (Quoting The Am. Heritage College Dictionary, 1115 (4th ed.2002)). The amounts to be considered are future-oriented, that is, they are amounts that arise in the future. The use of the word "projected" to modify "disposable income" indicates that amounts in question are amounts that will arise in the future.
The phrase "reasonably necessary . . . for support" indicates that the amounts, and the payment of the amounts, must be reasonably necessary for the support of the debtor and any dependent. Payments that a debtor does not propose to make during the pendency of the plan and that a debtor is not required to make *45 under the plan cannot be said to be reasonably necessary for the support of that debtor. Thus any deductions from income based on the "amounts" in question must be payments that will be made pursuant to the confirmed plan of reorganization[12].
The third modifying phrase, "to be expended", also indicates that the amounts to be deducted are amounts that will be paid in the future. To "expend" means to "put out or lay out". Am. Heritage Dictionary, 462 (1976). To expend amounts of money, then, means to pay out money. Money that is "to be expended" is money that is to be paid in the future. An amount, the payment of which is never contemplated, cannot be an amount that is to be paid in the future.
The "amounts" referred to in Paragraph 1325(b)(2) are amounts that a debtor will make in the future as provided in the debtor's plan. They are not amounts that are provided for in pre-petition contracts that give rise to both secured and unsecured claims.
At least one Court has considered this issue. See In re Renicker, 342 B.R. 304 (Bankr.W.D.Mo.2006). The facts in Renicker are on all fours in all relevant respects with those herein. In Renicker the debtors surrendered the collateral securing a claim. The Court held that the debtors could not use their historic mortgage expense to reduce their monthly income to avoid paying additional amounts to unsecured creditors because they no longer owned the home that served as collateral for the mortgage. In Renicker, a secured claim was effectively bifurcated into a secured claim in the amount of $00.00 and a potential unsecured claim (based on any deficiency). In the case at bar, the Best Buy claim is being bifurcated into a secured claim in the amount of $100.00 and an unsecured claim in an amount certain, $2,116.00.
The critical fact in Renicker and in the case at bar is the same. In each case, a secured claim is bifurcated for purposes of treatment under the chapter 13 plan. The necessary conclusion is also the same. Any deduction from income based on a secured claim that no longer exists may not be allowed.
Comparing the Chapter 7 Means Test and the Chapter 13 Projected Disposable Income Test A different result is not compelled by the directive in section 1325(b)(3) that the "amounts reasonably necessary to be expended" are to be determined in accordance with Section 707(b)(2)(A) & (B). Paragraph 707(b)(1) provides that the Court may convert or dismiss a chapter 7 case if granting relief under chapter 7 would constitute an abuse of the provisions of that chapter. Paragraph 707(b)(2) provides a rebuttable threshold test ("the Means Test") to determine whether granting relief would be an abuse of the provisions of chapter 7 case. Under the Means Test, an assumption of abuse arises if a debtor's disposable income, as calculated under Paragraph 707(b)(2), is greater than certain statutory amounts.
The objective of the Means Test in Section 707(b), then, is to roughly estimate whether a debtor has sufficient disposable income to fund a chapter 13 plan, that is, *46 to estimate the amount of residual income that the debtor has each month after deducting (1) allowed monthly costs of living; (2) monthly payment toward the retirement of accrued debts that give rise to priority claims; and (3) monthly payments toward the retirement of accrued secured debt.[13]See Clauses 707(b)(2)(A)(ii)-(iv).
Clause 707(b)(2)(A)(ii) enumerates certain monthly expenses[14] that may be deducted from current monthly income. Clause 707(b)(2)(A)(iv) permits the debtor to deduct expenses for payments on priority claims. Clause 707(b)(2)(A)(iii)[15] allows the debtor to deduct "monthly payments [arising] on account of secured debts" and prescribes the method to be used in calculating that amount. In relevant part Clause 707(b)(2)(A)(iii) states that "[t]he debtor's average monthly payments on account of secured debts shall be calculated as . . . the total of all amounts scheduled as contractually due to secured creditors in each month of the 60 months following the date of petition . . . divided by 60."
The term "contractually due", however, does not carry the same meaning in a chapter 13 case as in a chapter 7 case. The chapter 13 plan constitutes a new agreement between the debtor and each secured creditor. A debtor's obligations under the plan are substituted for his or her obligations under the original contract with each secured creditor.
This Court has previously recognized that once a plan is confirmed, and the property of the estate has vested in the debtor, the secured creditor's rights and interests are then defined strictly by the provisions of the plan. In re Johnson, 63 B.R. 550 (Bankr.D.Colo.1986). That holding is clearly in accordance with the explicit provisions of 11 U.S.C. § 1327(a) *47 In other words, the plan itself has the effect of making a new agreement between the debtor and the creditor with a new obligation to be paid in the manner provided for by the terms of the plan. See, Matter of Winterfeldt, 28 B.R. 486 (Bankr.E.D.Wis.1983); In re Tucker, 35 B.R. 35 (Bankr.M.D.Tenn.1983) and cases cited therein; In re Hebert, 61 B.R. 44 (Bankr.W.D.La.1986).
In re Nicholson, 70 B.R. 398, 400 (Bankr. D.Colo.1987) (Emphasis added.).
The term "amounts contractually due", as used in the context of this chapter 13 case, cannot refer to amounts due under the Best Buy Contract because there are no amounts contractually due in the future based on that contract. The Debtors' only obligation to Best Buy on account of the secured portion of its claim is to make six payments in the amount of $1820 each. It is those payments that form the basis for the deduction from income. It is the total amount of those payments, $109.20, divided by 60, that may be deducted from the Debtors' income on account of the secured portion of the Best Buy claim.
The Debtors' Arguments. The Debtors' arguments are based solely on Section 707(b)(2), line 47 of Form B22C and opinions interpreting them. To focus only on Section 707(b)(2), would be to ignore the language of Section 1325(b)(1)-(3), something this Court may not do. See BFP v. Resolution Trust Corp., 511 U.S. 531, 537, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (". . . Congress acts intentionally and purposefully when it includes particular language in one section but omits it in another."). The modifying terms "projected", "reasonably necessary", and "to be expended", must be given some import in chapter 13.
The language on line 47 of Form B22C parrots the language in Section 707(b)(2). As such, the language on line 47 is subject to all of the analysis that is applicable to Section 707(b)(2). Furthermore, Form B22C is only a form. It carries the weight of neither the Bankruptcy Code nor the Federal Rules of Bankruptcy Procedure. Indeed, it is provided in the Bankruptcy Rules that the Forms shall be altered as is appropriate. See Fed. R. Bankr.P. 9009. ("The Official Forms . . . shall be observed and used with alterations as may be appropriate. Forms may be combined and their contents rearranged to permit economies in their use.")
The Debtors rely on the opinion in In re Walker, Case No. 05-15010, 2006 WL 1314125 (Bankr.N.D.Ga. May 1, 2006). In Walker, the debtors sought to deduct their average mortgage payment over the 6-month post-petition period in determining their disposable income for purposes of the chapter 7 Means Test even though they intended to surrender their residence. The Court examined the language in Section 707(b)(2)(A)(iii) and concluded that the reference to payments "scheduled as contractually due" necessarily implied that the debtors could deduct their mortgage payments from their current monthly income even though they would never make those payments. The reasoning in Walker, however, only applies to a chapter 7 case. Accordingly, that opinion gives no guidance regarding the interpretation of the provisions of Section 1325(b).
The Debtors also cite In re Barr, 341 B.R. 181 (Bankr.M.D.N.C.2006) in support of their position. In Barr, the chapter 13 debtor's annual income exceed that of the median for a family of similar size in her state. The debtor's expenses, calculated in accordance with Paragraph 707(b)(2), exceeded her Current Monthly Income by $76.47. Her schedules I and J, however, indicated that she had net disposable income of at least $2,038.00 before deductions for payments to secured creditors. *48 After payments owed to secured creditors, she still had $513.00 in unallocated disposable income that she could have paid to unsecured creditors. The chapter 13 trustee objected to the debtor's plan under Paragraph 1325(a)(3) on the grounds that it was not filed in good faith. The Court concluded that whether the proposed plan commits all of the debtor's disposable income must be determined under section 1325(b) rather than as an element of good faith under Section 1325(a)(3).
While the Court did hold that the "use of `shall' in section 1325(b)(3) is mandatory and leaves no discretion with respect to the [amounts] that are to be deducted in arriving at disposable income", Barr at 185, the Court did not consider the language in Paragraphs 1325(b)(1) & (2). More specifically, the Court never considered the effect of the terms "projected", "reasonably necessary . . . for support", or "to be expended". on the word "amounts". Furthermore, there is no indication that the debtor in Barr had either surrendered property serving as collateral for a secured claim as in Renicker or had bifurcated a secured claim based on the valuation of property serving as collateral for that claim as in this case. The opinion does not provide any insight into the method that a debtor, a trustee, or a Court should use when calculating the amount that a debtor may deduct from his or her income on account of secured debts under Clause 707(b)(2)(A)(iii).
The Debtors' calculation focuses on the language of Section 707(b)(A)(iii) and the instructions in Walker, supra. In reducing their income on account of the Best Buy claim, they take the total of all post-petition payments due under the contract, $4,056.00 and divide by 60. This approach, however, ignores the language in Section 1325(b)(1)-(3) that modifies the instructions in Section 707(b) concerning secured claims. The Debtors may only reduce their income by $1.82 per month on account of the secured debt arising from the Best Buy claim.

CONCLUSION
The Debtors' gross income is above the state median gross income for a family of the same size, the chapter 13 trustee objects to the plan, and the plan does not provide for payment in full to unsecured creditors. Consequently, this Court may not confirm the Debtors' plan unless it provides that all of the Debtor's "projected disposable income" will be paid to unsecured creditors. The plan does not so provide. The objection of the chapter 13 trustee will be sustained without prejudice to the Debtors filing an amended plan within 14 days from the date of the entry of the accompanying order on docket.
An appropriate order shall issue.
NOTES
[1]  Section 1325(b) was revised and became effective on October 17, 2005, as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"). See Pub.L. No. 109-8, 119 Stat. 23 (2005).
[2]  Section 1325(b) incorporates Section 707(b)(2)(A) & (B) into the calculation. Section 707(b) was also revised by BAPCPA.
[3]  To implement BAPCPA, the Judicial Conference approved nine new Official Forms and amendments to thirty-three existing Forms. One of the new forms is Form B22C.
[4]  This amount obviously differs from the amount of gross annual income scheduled by the Debtors on their Schedule I. The difference lies in the definitions of the income to be used for each form. In Form B22C, a debtor is to enter his or her "current monthly income", which is defined as the "average monthly income . . . that the debtor receives . . . derived during the 6-month period ending on the last day of the calendar month immediately preceding the date' of petition." See 11 U.S.C. § 101(10A). A debtor's scheduled income is traditionally calculated in a manner designed to most accurately reflect the debtor's income on the date of petition. Examples of the methods used to calculate such income include one-twelfth of the debtor's previous annual income or monthly anticipated income going forward.
[5]  This language parrots that of Clause 707(b)(2)(A)(iii).
[6]  Because the Debtors' gross annual income is greater that the median annual income for a family of three in Virginia, the Debtors are required to make payments for five years. See 11 U.S.C. § 1325(b)(4). Also see discussion, infra.
[7]  Section 1325(b)(1)-(3) provides:

(b)(1) If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan
(A) the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or
(B) the plan provides that all of the debtor's projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan.
(2) For purposes of this subsection, the term "disposable income" means current monthly income received by the debtor (other than child support payments, foster care payments, or disability payments for a dependent child made in accordance with applicable nonbankruptcy law to the extent reasonably necessary to be expended for such child) less amounts reasonably necessary to be expended
(A)(1) for the maintenance or support of the debtor or a dependent of the debtor, or for a domestic support obligation, that first becomes payable after the date the petition is filed; and
(ii) for charitable contributions (that meet the definition of "charitable contribution" under section 548(d)(3) to a qualified religious or charitable entity or organization (as defined in section 548(d)(4))) in an amount not to exceed 15 percent of gross income of the debtor for the year in which the contributions are made; and
(B) if the debtor is engaged in business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business.
(3) Amounts reasonably necessary to be expended under paragraph (2) shall be determined in accordance with subparagraphs (A) and (B) of section 707(b)(2), if the debtor has current monthly income, when multiplied by 12, greater than
(A) in the case of a debtor in a household of 1 person, the median family income of the applicable State for 1 earner;
(B) in the case of a debtor in a household of 2, 3, or 4 individuals, the highest median family income of the applicable State for a family of the same number or fewer individuals; or
(C) in the case of a debtor in a household exceeding 4 individuals, the highest median family income of the applicable State for a family of 4 or fewer individuals, plus $525 per month for each individual in excess of 4.
[8]  A debtor is also allowed deductions for post-petition domestic support obligations, charitable contributions, and business expenses. See Subparagraphs 1325(b)(2)(A) & (B). Those deductions are not relevant to this discussion.
[9]  Section 101(10A) provides

The term "current monthly income"
(A) means the average monthly income from all sources that the debtor receives (or in a joint case the debtor and the debtor's spouse receive) without regard to whether such income is taxable income, derived during the 6-month period ending on
(I) the last day of the calendar month immediately preceding the date of the commencement of the case if the debtor files the schedule of current income required by section 521(a)(1)(B)(ii); or
(ii) the date on which current income is determined by the court for purposes of this title if the debtor does not file the schedule of current income required by section 521(a)(1)(B)(ii); and
(B) includes any amount paid by any entity other than the debtor (or in a joint case the debtor and the debtor's spouse), on a regular basis for the household expenses of the debtor or the debtor's dependents (and in a joint case the debtor's spouse if not otherwise a dependent), but excludes benefits received under the Social Security Act, payments to victims of war crimes or crimes against humanity on account of their status as victims of such crimes, and payments to victims of international terrorism (as defined in section 2331 of title 18) or domestic terrorism (as defined in section 2331 of title 18) on account of their status as victims of such terrorism.
[10]  The median family income for a family of three in Virginia is $63,177.00. The Debtors list gross monthly income of $5,780.00 on line 47 of their Official Form B22C. Their annualized "current monthly income" is $69,360.00, an amount greater than the median income for families of the same size in Virginia. Their allowed expenses are to be determined in accordance with 11 U.S.C. § 707(b)(2)(A) & (B).
[11]  In Jass, the issue was whether the debtors were required to use their current monthly income as their monthly income when calculating their disposable income for purposes of a chapter 13 plan. The debtors' current monthly income annualized was $143,403.96. Using Form B22C, the debtors calculated their disposable income at $3,625.63 per month. They proposed to pay their unsecured creditors $790.00 per month.

The debtors asserted that the changes under the BAPCPA do not require them to pay the unsecured creditors the amount resulting from their Form B22C so long as they could show that the income and expenses reported on the Form B22C are inadequate representations of their future budget. They argued that the word "projected" in Section 1325(b)(1) modifies the definition of "disposable income" allowing them to disregard their "currently monthly income" if that amount would not result in projected income. The Court agreed holding that " .. section 1325(b)(I)(B)'s requirement that plan propose to pay `projected disposable income' means that the number resulting from Form B22C is a starting point for the Court's inquiry only." In re Jass, 340 B.R. 411, 415 (Bankr.D.Utah 2006). The Court noted that it was bound to give effect to the future orientation of the word "projected". The Court concluded that the term "disposable income" is oriented in historical numbers and that Congress must have intended Courts to consider both future and historical information when it modified that term with the worth "projected". Jass, 340 B.R. at 415-416. The Court held that a debtor must propose to pay unsecured creditors the number resulting from Form B22C unless the debtor could show that this number did not adequately represent the debtor's budget projected into the future. Id.
[12]  This is not to say that the deductions for monthly expenses and priority claims described in Section 707(b) are not to be used in chapter 13. The treatment of secured claims sometimes differs in chapter 7 and chapter 13, while unsecured claims and monthly expenses are treated identically. In chapter 7, a debtor may not reduce a creditor's secured claim to the judicially determined value of the collateral. Dewsnup v. Timm (In re Dewsnup), 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992). In chapter 13, however, certain secured claims may be bifurcated. See 11 U.S.C. § 1325(a)(5).
[13]  The Means Test is derived from the tautological fact that the distribution of a person's net income may be divided into four categories: (1) Payment of expenses that arise during the month; (2) Payment toward the retirement of accrued unsecured debt that would give rise to general unsecured claims in a bankruptcy proceeding; (3) Payment toward the retirement of accrued unsecured debt that would give rise to priority unsecured claims in a bankruptcy proceeding; and (4) Payment toward debt that is secured by property. Thus, category (2), payments made toward unsecured debt, may be calculated as a residual by subtracting the total of categories (1), (3), and (4) from the debtor's net income after taxes.
[14]  Clause 707(b)(2)(A)(ii) allows reductions for expenses under the National IRS Standard (food, clothing, household supplies, personal care, and miscellaneous) and Local IRS Standards (housing and utilities, non-mortgage home expense, and transportation) as well as health insurance premiums, disability insurance premiums, and contributions to a health savings account.
[15]  Section 707(b)(2)(A)(iii) provides:

(2)(A) (i) In considering under paragraph (1) whether the granting of relief would be an abuse of the provisions of this chapter, the court shall presume abuse exists if the debtor's current monthly income reduced by the amounts determined under clauses (ii), (iii), and (iv), and multiplied by 60 is not less than the lesser of
(I) 25 percent of the debtor's nonpriority unsecured claims in the case, or $6,000, whichever is greater; or
(II) $10,000.
. . .
(iii) The debtor's average monthly payments on account of secured debts shall be calculated as the sum of
(I) the total of all amounts scheduled as contractually due to secured creditors in each month of the 60 months following the date of the petition; and
(II) any additional payments to secured creditors necessary for the debtor, in filing a plan under chapter 13 of this title, to maintain possession of the debtor's primary residence, motor vehicle, or other property necessary for the support of the debtor and the debtor's dependents, that serves as collateral for secured debts; divided by 60.