State v. Alhashimi ( 2017 )

[Cite as State v. Alhashimi, 2017-Ohio-7658.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
CASE NOS. CA2016-07-065
Plaintiff-Appellee, : CA2017-07-066
: OPINION
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:
JACOB H. ALHASHIMI, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 14CR30632
David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 520 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee
William F. Oswall, Jr., 119 East Court Street, Suite 311, Cincinnati, Ohio 45202, for
defendant-appellant
PIPER, J.
{¶ 1} Defendant-appellant, Jacob H. Alhashimi, appeals his conviction and sentence
in the Warren County Court of Common Pleas.
{¶ 2} On December 18, 2014, the Warren County Grand Jury returned a ten-count
indictment charging Alhashimi with six felony counts of aggravated trafficking in drugs, three
felony counts of trafficking in cocaine, and one felony count of permitting drug use. On
December 31, 2014, the state filed a superseding indictment that was identical to the first,
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except that Count 9 for aggravated trafficking in drugs included a major drug offender
specification. The first indictment was dismissed. Alhashimi waived his right to a jury and
the matter proceeded to a bench trial on June 18, 2015. The trial revealed the following
facts.
{¶ 3} On September 23, 2014, Alhashimi met with Detective A.K., an undercover
officer of the Warren County Drug Task Force, at a grocery store parking lot in Springboro,
Ohio to purchase 50 unit doses of ecstasy.1 A.K. successfully purchased 50 tablets for $300
in prerecorded money. Testing by the Miami Valley Regional Crime Lab revealed the tablets
contained ethylone and cocaine, Schedule I and II controlled substances, respectively.
Shortly after the first purchase, A.K. and Alhashimi discussed over the telephone the
purchase of another 50 unit doses of ecstasy. During this discussion, Alhashimi indicated
the tablets would be "double stacked or triple stacked", and thus, "they were more potent
than the first set."
{¶ 4} On October 6, 2014, A.K. and Alhashimi met again in the Springboro grocery
store parking lot where Alhashimi handed A.K. 50 tablets in exchange for $300 in
prerecorded money. The tablets tested positive for ethylone and cocaine. Following this
second transaction, A.K. and Alhashimi discussed over the telephone the possibility of a
larger transaction. The two agreed, and on October 17, 2014, met at a supercenter parking
lot in Lebanon, Ohio, where Alhashimi handed A.K. 100 tablets in exchange for $600 in
prerecorded money. Officers in a surveillance vehicle nearby photographed the transaction
and several juveniles in the parking lot at the time of the transaction. Officers later returned
to the parking lot to investigate the distance between parking spots using their stride as a unit
of measurement. Testing of the tablets indicated some contained ethylone, while others
1. We note that the names of the undercover officers are omitted to protect the individual officers' identities.
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contained Ibuprofen and caffeine. Following the third transaction, A.K. communicated to
Alhashimi an interest in purchasing 1,000 tablets. Alhashimi responded, "that is a big
number. He can get it, but he is not ready to go to jail yet." Alhashimi further informed A.K.
that he could also sell him heroin for a specified price.
{¶ 5} On October 27, 2014, the two further discussed the larger order. The two
discussed purchasing 1,000 tablets in exchange for $5,000, and Alhashimi indicated he did
not want to provide the tablets all at once. The two agreed to exchange the tablets over
three days in increments of 200, 200, and 500. Subsequent to this agreement, Alhashimi
informed A.K. that his partner wanted him to raise the price to $5,500 due to the quality of the
tablets. In addition to testimony regarding these conversations, the trial court permitted the
use of a text message conversation regarding the purchase to refresh a witness' recollection.
The prosecutor disclosed the text message conversation immediately upon its discovery,
which was approximately 48 hours before the start of trial.
{¶ 6} On October 29, 2014, the first of three installments in the large order occurred
at the supercenter in Lebanon, Ohio, where Alhashimi exchanged 200 tablets for $1,100 in
prerecorded money. Alhashimi indicated the tablets "contained more cocaine and that was
the reason [A.K.] was paying $5.50 instead $5 per unit." The bag exchanged between the
two contained 199 tablets, which did not test positive for any controlled substances. Officers
in a surveillance vehicle nearby photographed the transaction and several juveniles in the
parking lot at the time of the transaction.
{¶ 7} On October 30, 2014, the second installment in the large purchase occurred at
a retail store in Lebanon, Ohio. The two exchanged 300 tablets for $1,650 in prerecorded
money. The bag exchanged between the two contained 294 tablets, six of which tested
positive for ethylone. On October 31, 2014, the third installment in the large purchase
occurred at a restaurant in Lebanon, Ohio. The two exchanged 500 tablets for $2,750 in
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prerecorded money. The transaction occurred inside the restaurant. The bag exchanged
between the two contained 499 tablets, 201 of which contained ethylone. Upon leaving the
restaurant, police arrested Alhashimi. Officers in a surveillance vehicle nearby photographed
several juveniles entering the restaurant while Alhashimi and A.K. were inside.
{¶ 8} The trial court found Alhashimi guilty on all counts except Count 9 and the
major drug offender specification. The trial court found him guilty of the following offenses:
(1) Count 1 – aggravated trafficking in drugs on September 23, 2014, a second-degree
felony, (2) Count 2 – trafficking in cocaine on September 23, 2014, a fifth-degree felony, (3)
Count 3 – aggravated trafficking in drugs on October 6, 2014, a third-degree felony, (4) Count
4 – trafficking in cocaine on October 6, 2014, a fifth-degree felony, (5) Count 5 – aggravated
trafficking in drugs within the vicinity of a juvenile on October 17, 2014, a first-degree felony,
(6) Count 6 – trafficking in cocaine within the vicinity of a juvenile on October 29, 2014, a
fourth-degree felony, (7) Count 7 – aggravated trafficking in drugs on October 30, 2014, a
fourth-degree felony, (8) Count 8 – aggravated trafficking in drugs within the vicinity of a
juvenile on October 31, 2014, a first-degree felony, and (10) Count 10 – permitting drug use
from September 1, 2014 to October 31, 2014, a fifth-degree felony.
{¶ 9} The trial court sentenced Alhashimi to a mandatory five-year prison term on
Counts 1, 5, and 8, to be served concurrently with each other; to a 12-month prison term on
Counts 2 and 4, to be served concurrently with each other, but consecutively to Counts 1, 5,
and 8; to a12-month prison term on Count 3, to be served consecutive to all other sentences;
to a 12-month prison term on Counts 6 and 7, to be served concurrently with each other, but
consecutively to all other sentences. Therefore, the trial court sentenced Alhashimi to an
aggregate eight-year prison term, five years of which was mandatory. The trial court found
the consecutive sentences were necessary to punish Alhashimi and to protect the public.
The trial court found the consecutive sentences were consistent with the principles and
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purposes of sentencing and not disproportionate to Alhashimi's conduct and the danger he
poses to the public.
{¶ 10} Assignment of Error No. 1:
{¶ 11} THE TRIAL [COURT] ERRED WHEN IT REFUSED TO ALLOW AN
INSPECTION OF THE GRAND JURY TRANSCRIPT.
{¶ 12} Assignment of Error No. 2:
{¶ 13} DEFENDANT-APPELLANT WAS DEPRIVED OF THE EFFECTIVE
ASSISTANCE OF COUNSEL.
{¶ 14} Alhashimi contends the trial court abused its discretion by denying his request
for an in camera review of the grand jury transcripts because he demonstrated a
particularized need for disclosing the transcripts that outweighed the state's need for secrecy
in the proceedings. In so doing, Alhashimi argues he met the requirements for disclosure
because the first indictment did not contain a major offender specification and he had
individual concerns regarding who provided testimony at the second grand jury proceeding.
Alhashimi further claims the trial court erred by denying his request without first inspecting
the transcripts to determine whether Alhashimi presented a viable issue.
{¶ 15} Crim.R. 6(E) governs the disclosure of grand jury testimony, which provides
[a] * * * prosecuting attorney * * * may disclose matters occurring
before the grand jury, other than the deliberations of a grand jury
or the vote of a grand juror, but may disclose such matters only
when so directed by the court preliminary to or in connection with
a judicial proceeding, or when permitted by the court at the
request of the defendant upon a showing that grounds may exist
for a motion to dismiss the indictment because of matters
occurring before the grand jury.
{¶ 16} The Ohio Supreme Court stated that grand jury proceedings are secret, and
thus, a defendant has no right to inspect grand jury transcripts either before or during trial
unless the "ends of justice require it and there is a showing by the defense that a
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particularized need for disclosure exists which outweighs the need for secrecy." State v.
Greer, 66 Ohio St.2d 139 (1981), paragraph two of the syllabus. A defendant establishes a
particularized need for grand jury transcripts when the circumstances reveal a probability that
"the failure to disclose the testimony will deprive the defendant of a fair adjudication of the
allegations placed in issue by the witness' trial testimony." Id. at paragraph three of the
syllabus.
{¶ 17} This determination is a fact question left to the sound discretion of the trial
court. State v. Widmer, 12th Dist. Warren No. CA2012-02-008, 2013-Ohio-62, ¶ 154, citing
Greer at paragraphs one and three of the syllabus. Accordingly, "[a] decision denying the
release of the grand jury transcript will not be reversed absent an abuse of discretion."
Widmer at ¶ 154, citing State v. Coley, 93 Ohio St.3d 253, 261 (2001). An abuse of
discretion is more than an error of law or judgment. Rather, it suggests the "trial court's
decision was unreasonable, arbitrary or unconscionable." State v. Perkins, 12th Dist. Clinton
No. CA2005-01-002, 2005-Ohio-6557, ¶ 8. "A review under the abuse-of-discretion standard
is a deferential review." State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14.
{¶ 18} The trial court denied Alhashimi's request at the close of evidence for an in
camera review of the grand jury transcripts because it was untimely pursuant to Crim.R.
12(C) and moot due to the trial court's not guilty verdict with respect to Count 9. We find the
trial court did not abuse its discretion by denying Alhashimi's request.
{¶ 19} Pursuant to Crim.R. 12(C)(2), defects in the indictment, other than failure to
show jurisdiction in the court or to charge an offense, must be raised prior to trial.
"Therefore, absent a jurisdictional question, an attack on the validity of an indictment via a
pretrial motion should be brought before the trial court as provided by Crim.R. 12." State v.
Rohde, 2d Dist. Montgomery No. 26087, 2014-Ohio-5580, ¶ 22. Specifically, Crim.R. 12(D)
provides that all pretrial motions, with some specified exceptions, must be made within 35
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days after arraignment or seven days before trial, whichever is earlier.
{¶ 20} Alhashimi claims his concerns with the indictment process did not arise until
trial; therefore, he could not have raised them within the parameters of Crim.R. 12.
Alhashimi's concern involves the major drug offender specification added to Count 9.
However, the addition of the specification occurred on December 31, 2014 and the trial did
not begin until June 18, 2015. Moreover, Alhashimi's counsel indicated to the trial court on
the morning before trial that he intended to request an in camera review of the grand jury
testimony. Thus, Alhashimi was aware of the addition of the specification in advance of trial.
Additionally, the trial court did not err in finding its acquittal of Alhashimi on Count 9 with the
major drug offender specification rendered Alhashimi's request moot because the scope of
Alhashimi's request was limited to Count 9. See State v. Skatzes, 2d Dist. Montgomery No.
15848, 2003-Ohio-516, ¶ 414 (finding motion for disclosure of grand jury transcripts moot
where the basis for the alleged error was obviated). Accordingly, the trial court did not abuse
its discretion by finding Alhashimi's request at the close of evidence untimely and moot. The
trial court did not err in making such findings without independently reviewing the transcripts,
as the law does not require such.
{¶ 21} Furthermore, Alhashimi's request was an attempt to review the grand jury
transcripts for potential irregularities that may have aided him at trial. However, speculation
in exploring the grand jury transcripts does not meet Alhashimi's burden to demonstrate a
"particularized need." Accord State v. Neiderhelman, 12th Dist. Clermont No. CA94-10-081,
1995 Ohio App. LEXIS 4024, *21 (Sept. 18, 1995) ("[a]ppellant's speculation or assertion that
a review of the grand jury testimony would reveal inconsistencies is insufficient to show the
existence of a particularized need as such an argument could be made in every case").
{¶ 22} Alhashimi further argues he was denied the effective assistance of trial
counsel because his counsel failed to timely file a motion challenging the grand jury
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proceedings in advance of the trial date. Therefore, Alhashimi contends any waiver of the
issue due to his trial counsel's failure prejudiced him.
{¶ 23} To prevail on an ineffective assistance of counsel claim, an appellant must
establish: (1) that his trial counsel's performance was deficient; and (2) that such deficiency
prejudiced the defense to the point of depriving the appellant of a fair trial. Strickland v.
Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052 (1984); State v. Ullman, 12th Dist.
Warren No. CA2002-10-110, 2003-Ohio-4003, ¶ 43. Trial counsel's performance will not be
deemed deficient unless it "fell below an objective standard of reasonableness." Strickland
at 688. To show prejudice, a defendant must prove there exists "a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different." State v. Wilson, 12th Dist. Madison No. CA2013-10-034, 2014-Ohio-2342, ¶ 17.
A defendant's failure to satisfy one part of the Strickland test negates a court's need to
consider the other. State v. Hurst, 12th Dist. Brown No. CA2014-02-004, 2014-Ohio-4890, ¶
7.
{¶ 24} Even assuming deficiency by Alhashimi's trial counsel for failing to timely file a
request for an in camera review of the grand jury transcripts, Alhashimi's claim for ineffective
assistance of counsel fails because he cannot demonstrate any resulting prejudice. As
detailed above, the trial court did not abuse its discretion in denying the request as moot.
Therefore, Alhashimi cannot demonstrate that but for his trial counsel's failure to timely file
such request, the result of the proceedings would have been different, as the trial court
acquitted Alhashimi of the charge underlying his request.
{¶ 25} Accordingly, Alhashimi's first and second assignments of error are overruled.
{¶ 26} Assignment of Error No. 3:
{¶ 27} THE TRIAL COURT ERRED IN CONVICTING DEFEND[AN]T-APPELLANT
OF COUNT 6 AND ITS SPECIFICATION, COUNT 10, AND THE SPECIFICATIONS TO
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COUNTS 5 AND 8 FOR INSUFFICIENT EVIDENCE.
{¶ 28} Alhashimi contends his convictions for aggravated trafficking in drugs within
the vicinity of a juvenile in Count 5, trafficking in cocaine within the vicinity of a juvenile in
Count 6, aggravated trafficking in drugs within the vicinity of a juvenile in Count 8, and
permitting drug use in Count 10 are not supported by sufficient evidence.
{¶ 29} Sufficiency of the evidence is the legal standard applied to determine whether
the case may go to the jury or whether the evidence is legally sufficient to support the jury
verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997), superseded
by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89,
102 (1997), citing Black's Law Dictionary (6th Ed.1990) 1433. A conviction based on legally
insufficient evidence constitutes a denial of due process. Tibbs v. Florida, 457 U.S. 31, 45,
102 S.Ct. 2211 (1982), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979).
The relevant inquiry is "whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259, 259-60 (1991),
superseded by constitutional amendment on other grounds as stated by Smith at 102.
{¶ 30} Alhashimi argues the state failed to present sufficient evidence for his
conviction for trafficking in cocaine within the vicinity of a juvenile in Count 6 because
laboratory testing did not indicate the presence of any controlled substances in the tablets
sold on October 29, 2014. Thus, Alhashimi argues a conviction pursuant to R.C.
2925.03(A)(1) must be based on the physical exchange of actual cocaine, rather than, the
intent to traffic what the accused represented as cocaine. Alhashimi further argues he did
not offer to sell cocaine to the undercover officer because the transaction only pertained to
ecstasy tablets.
{¶ 31} R.C. 2925.03(A)(1) provides "[n]o person shall knowingly * * * [s]ell or offer to
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sell a controlled substance * * *." Contrary to Alhashimi's claim otherwise, "[a] person can
'offer to sell a controlled substance' in violation of R.C. 2925.03(A)(1) without transferring a
controlled substance to the buyer." State v. Scott, 69 Ohio St.2d 439 (1982), syllabus.
Therefore, it is immaterial whether the testing of the tablets exchanged for money between
Alhashimi and A.K. indicated any controlled substances. Rather, "[b]y using the phrase 'offer
to sell' in the disjunctive with 'sell' throughout R.C. 2925.03, the General Assembly expressly
and properly prohibited" marketing and offering to sell a controlled substance "as a form of
trafficking in drugs." Id. at 441; State v. Siggers, 9th Dist. Medina No. 09CA0028-M, 2010-
Ohio-1353, ¶ 13 (stating R.C. 2925.03[I] codifies Ohio Supreme Court case law establishing
that "drug" pursuant to the statute includes any substance represented to be a drug).
{¶ 32} With respect to the details of the offer to sell a controlled substance on
October 29, 2014, A.K. testified extensively regarding multiple conversations with Alhashimi
arranging the purchase of 1,000 ecstasy tablets split between three separate installments.
During one of the conversations, Alhashimi explained an increase in purchase price from $5
to $5.50 because the tablets "contained more cocaine." Viewing this evidence in a light most
favorable to the state, a rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt. Therefore, the state presented sufficient evidence
for Alhashimi's conviction for trafficking in cocaine in Count 6.
{¶ 33} Alhashimi next argues the state failed to present sufficient evidence for his
conviction for permitting drug use in Count 10 because he cannot be convicted of permitting
his vehicle to be used in a felony drug abuse offense when he was "user" of the vehicle.
{¶ 34} R.C. 2925.13(A) provides that
[n]o person who is the owner, operator, or person in charge of a
locomotive, watercraft, aircraft, or other vehicle, as defined in
division (A) of section 4501.01 of the Revised Code, shall
knowingly permit the vehicle to be used for the commission of a
felony drug abuse offense.
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The plain language of the statute does not support Alhashimi's contention that the statute
does not prohibit the use of a vehicle to carry out a drug transaction. Rather, R.C.
2925.13(A) clearly states that no operator of a vehicle shall knowingly permit the vehicle to
be used to carry out a felony drug abuse offense. The state presented testimony and
photographic evidence that Alhashimi drove the vehicle in question to transport himself and
the illegal drugs to the various drug transaction meeting points. "A person acts knowingly,
regardless of purpose, when the person is aware that the person's conduct will probably
cause a certain result or will probably be of a certain nature." R.C. 2901.22(B). Considering
the testimony regarding several conversations to arrange the various drug transactions, the
state presented sufficient evidence that Alhashimi operated the motor vehicle cognizant that
driving to the prearranged destinations with the illegal drugs would probably cause the result
of the sale of such drugs. The evidence, viewed in a light most favorable to the state, is
legally sufficient to support the verdict as a matter of law.
{¶ 34} Next, Alhashimi argues the state failed to present sufficient evidence for the "in
the vicinity of a juvenile" specifications to Counts 5, 6, and 8. Alhashimi contends the state
failed to present evidence of the specific age of the alleged juveniles and that the alleged
juveniles were within the vicinity at the exact moment the money and drugs were exchanged.
{¶ 35} R.C. 2925.01(BB) provides
[a]n offense is 'committed in the vicinity of a juvenile' if the
offender commits the offense within one hundred feet of a
juvenile or within the view of a juvenile, regardless of whether the
offender knows the age of the juvenile, whether the offender
knows the offense is being committed within one hundred feet of
or within view of the juvenile, or whether the juvenile actually
views the commission of the offense.
{¶ 36} We find the state presented sufficient evidence that the transactions occurred
within 100 feet of a juvenile. Contrary to Alhashimi's claim otherwise, R.C. 2925.01(BB)
"does not require the state to prove the specific age of the alleged juvenile, but rather, that
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such individual is under the age of eighteen." State v. Creech, 12th Dist. Fayette No.
CA2006-05-019, 2007-Ohio-2558, ¶ 18. Similar to Creech, the state presented testimony
that the officers personally observed juveniles within 100 feet of the area where the
transaction occurred. A.K. and additional officers in the on-site surveillance vehicle were
afforded the opportunity to observe their surroundings and the individuals present at the time,
including the individuals' physical characteristics. In addition to officer testimony, the state
presented photographic evidence of the alleged juveniles documenting their location in
proximity to area of the transactions. Viewing this evidence in a light most favorable to the
state, we find there was sufficient evidence presented to support the juvenile specifications.
See, e.g., State v. Fannin, 8th Dist. Cuyahoga No. 80014, 2002-Ohio-4180, ¶ 121-22 (finding
officer testimony describing observations of juveniles in the area of the transaction sufficient
to support a conviction on a juvenile specification).
{¶ 37} Alhashimi further claims the state failed to present evidence the juveniles were
within 100 feet of the transactions at the exact moment the transactions occurred. With
regards to the parking lot transactions in Counts 5 and 6, an officer from the surveillance
vehicle testified he began photographing the parking lots once the transaction began to
document any juveniles within the vicinity of the transaction area. The officer explained he
does not photograph any areas that are not within 100 feet of the transaction.
{¶ 38} With respect to the restaurant transaction in Count 8, A.K. testified the
transaction occurred within the restaurant. The officer from the surveillance van testified that
juveniles entered the restaurant while A.K. and Alhashimi were inside. The state supported
this testimony with photographic evidence. Additionally, a juvenile was simultaneously
entering the restaurant as Alhashimi was exiting. Considering the close proximity of diners
within the same restaurant, circumstantial evidence establishes juveniles were within 100 feet
of A.K. and Alhashimi at the time of the drug transaction. See State v. Douglas, 3d Dist.
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Marion No. 9-07-58, 2008-Ohio-3232, ¶ 32 (finding state presented sufficient evidence to
satisfy R.C. 2925.01[BB] where the jury could find a juvenile was within 100 feet of drug
transaction when the juvenile was outside, but in close proximity to, the house where the
transaction occurred).
{¶ 39} Finally, Alhashimi contends he was denied the effective assistance of trial
counsel because his counsel failed to address the evidence insufficiency issues with respect
to Counts 6 and 10 during his Crim.R. 29 motions. Since we found Alhashimi's convictions
on Counts 6 and 10 were supported by sufficient evidence, his trial counsel was not deficient
for the lack of a motion for acquittal in regards to Counts 6 and 10.
{¶ 40} Accordingly, Alhashimi's third assignment of error is overruled.
{¶ 41} Assignment of Error No. 4:
{¶ 42} THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO MERGE
COUNTS 1 AND 2, AND IN FAILING TO MERGE COUNTS 3 AND 4, AND IN FAILING TO
MERGE COUNT 10 WITH ALL OTHER COUNTS OF THE INDICTMENT.
{¶ 43} Alhashimi argues the trial court erred by not merging as allied offenses of
similar import Counts 1 and 2, and Counts 3 and 4, because the tablets sold in those
transactions contained two different controlled substances. Thus, Alhashimi asserts that the
sale of a single tablet containing two different controlled substances can only result in one
conviction. Alhashimi further argues the trial court erred by not merging his conviction in
Count 10 with the remainder of the convictions because the offense occurred at the same
time, without a separate animus, and did not result in separate harm.
{¶ 44} "It is well-established that an appellant's failure to raise an argument with
regard to allied offenses in the trial court constitutes a waiver of that argument on appeal."
State v. Thomas, 12th Dist. Butler No. CA2006-03-041, 2006-Ohio-7029, ¶ 33. Alhashimi did
not pose these arguments before the trial court; therefore, the arguments are reviewed for
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plain error. Id. at ¶ 33-35. "Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court." Crim.R. 52(B). Plain error does
not exist unless the error is obvious and but for the error, the outcome of the case would
have been different. State v. Blacker, 12th Dist. Warren No. CA2008-07-094, 2009-Ohio-
5519, ¶ 39. Notice of plain error is taken with the utmost caution and only under exceptional
circumstances to prevent a manifest miscarriage of justice. Id.
{¶ 45} Pursuant to R.C. 2941.25, a trial court shall not impose multiple punishments
for the same criminal conduct. The statute provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the
indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of
them.
{¶ 46} "In determining whether offenses are allied offenses of similar import within the
meaning of R.C. 2941.25, courts must evaluate three separate factors—the conduct, the
animus, and the import." State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph one
of the syllabus. If any of the following are true, a defendant's convictions do not merge and
he or she may be sentenced for multiple offenses: "(1) the conduct constitutes offenses of
dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3)
the conduct shows that the offenses were committed with separate animus." Id. at paragraph
three of the syllabus. Two or more offenses are of dissimilar import if "the defendant's
conduct constitutes offenses involving separate victims or if the harm that results from each
offense is separate and identifiable." Id. at paragraph two of the syllabus.
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{¶ 47} "At its heart, the allied-offense analysis is dependent upon the facts of a case
because R.C. 2941.25 focuses on the defendant's conduct." Id. at ¶ 26. Therefore, the
analysis "may result in varying results for the same set of offenses in different cases." State
v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 52, abrogated in part by Ruff at ¶ 30-33.
In making this determination pursuant to R.C. 2941.25, a court must review the entire record.
State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, ¶ 24. The burden lies with the
defendant to establish his entitlement to the protection provided by R.C. 2941.25 against
multiple punishments for a single criminal act. State v. Lewis, 12th Dist. Clinton No. CA2008-
10-045, 2012-Ohio-885, ¶ 14.
{¶ 48} R.C. 2925.03(C)(1) provides
[i]f the drug involved in the violation is any compound, mixture,
preparation, or substance included in schedule I or schedule II,
with the exception of marihuana, cocaine, L.S.D., heroin,
hashish, and controlled substance analogs, whoever violates
division (A) of this section is guilty of aggravated trafficking in
drugs.
R.C. 2925.03(C)(4) provides "[i]f the drug involved in the violation is cocaine or a compound,
mixture, preparation, or substance containing cocaine, whoever violates division (A) of this
section is guilty of trafficking in cocaine." Where a defendant is convicted of separate
trafficking offenses involving different types of drugs, each offense requires proof specific to
that drug and cannot be supported by trafficking in a different controlled substance. Accord
State v. Daniels, 12th Dist. Fayette No. CA2014-05-010, 2015-Ohio-1346, ¶ 17 (finding
trafficking offenses for heroin, cocaine, and methadone were not allied offenses of similar
import).
{¶ 49} Alhashimi's trafficking convictions involved two different controlled substances,
cocaine and ethylone, and thus, pursuant to R.C. 2925.01(A)(1), (C)(1), and (C)(4), each
conviction could not be supported by trafficking in the other illegal drug. Alhashimi's
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convictions in Counts 1 and 3 pertained to the ethylone. Whereas, his convictions in Counts
2 and 4 involved the cocaine. The state charged the trafficking in cocaine offenses as fifth-
degree felonies; therefore, the offenses did not depend in any respect on the quantity of
cocaine or its combination with the ethylone to elevate the degree of the offense.
{¶ 50} Additionally, R.C. 2925.01(D)(1)(C) defines the "bulk amount" for a schedule I
controlled substance, such as ethylone, as "[a]n amount equal to or exceeding thirty grams or
ten unit doses of a compound, mixture, preparation, or substance that is or contains any
amount of a Schedule I hallucinogen * * *, or a schedule I stimulate or depressant." In turn,
R.C. 2925.01(E) defines a "unit dose" as "an amount or unit of a compound, mixture, or
preparation containing a controlled substance that is separately identifiable and in a form that
indicates that it is the amount or unit by which the controlled substance is separately
administered to or taken by an individual." Thus, the trafficking statutes contemplate the
combination of controlled substances by using the language "a compound, mixture or
preparation containing a controlled substance." Therefore, neither Counts 1 and 2 nor
Counts 3 and 4 were allied offenses of similar import because the tablets sold by Alhashimi
contained both cocaine and ethylone, and the trafficking in cocaine convictions were not
elevated in degree based on the amount sold.2
{¶ 51} With respect to Count 10, the conduct and harm of knowingly permitting the
vehicle to be used for the commission of the trafficking offenses was separate from the
conduct and harm of exchanging the controlled substances for the prerecorded money. The
2. We note the dissent in State v. Woodard raised concerns regarding separate convictions resulting from a sale
of a mixture of drugs. State v. Woodard, 12th Dist. Warren No. CA2016-09-084, 2017-Ohio-6941 (Ringland, J.,
concurring in part and dissenting in part) (discussing concerns regarding enhanced penalties for increased bulk
weight offenses from drug mixtures and the lack of evidence the appellant knew the baggie of drugs at issue
contained both heroin and fentanyl). However, unlike Woodard, these concerns are nonexistent in this case
because the record contains ample evidence that Alhashimi exchanged the tablets with knowledge they
contained both cocaine and ethylone, and as discussed above, Alhashimi did not face enhanced penalties based
on the mixture.
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transport of Alhashimi and the controlled substances to the various meeting locations to
make the transactions was complete when the vehicle entered and parked in the parking lots.
Thus, the initial offense of permitting drug abuse was complete before the separate conduct
supporting the trafficking offenses was undertaken. See, e.g., State v. Back, 12th Dist. Butler
Nos. CA2015-03-037 and CA2015-03-038, 2015-Ohio-4447, ¶ 12 (holding offenses were not
allied offenses of similar import where the individual conduct supported the initial offense and
separate conduct after completion of the initial offense supported the second offense).
Therefore, Count 10 was not an allied offense of similar import to the rest of the counts.
{¶ 52} Accordingly, Alhashimi's fourth assignment of error is overruled.
{¶ 53} Assignment of Error No. 5:
{¶ 54} DEFENDANT-APPELLANT'S CONVICTION MUST BE REVERSED
BECAUSE THE TRIAL COURT PERMITTED THE STATE TO COMMIT DISCOVERY
VIOLATIONS.
{¶ 55} Alhashimi argues the trial court erred by not excluding evidence regarding the
officer's testimony that he used his stride to measure the distance between parking spots at
the supercenter parking lot because it was a scientific test the state failed to provide in
discovery in violation of Crim.R. 16. Alhashimi further asserts the trial erred by permitting the
state to use text messages between Alhashimi and A.K. to refresh a witness's recollection
that the prosecutor provided to the defense less than 48 hours before trial.
{¶ 56} Crim.R. 16 governs discovery in criminal prosecutions. State v. Wilson, 12th
Dist. Butler No. CA2012-12-254, 2013-Ohio-3877, ¶ 14. Violations of Crim.R. 16 constitute
reversible error "only when there is a showing that (1) the prosecution's failure to disclose
was a willful violation of the rule, (2) foreknowledge of the information would have benefited
the accused in the preparation of his defense, and (3) the accused suffered some prejudicial
effect." State v. Joseph, 73 Ohio St.3d 450, 458 (1995). Whether to grant or deny discovery
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motions in a criminal case is left to the sound discretion of the trial court. State v. Shoop, 87
Ohio App.3d 462, 469 (3d Dist.1993).
{¶ 57} Crim.R. 16(B)(4) provides that the state shall, upon a written demand for
discovery by the defendant, provide to the defense "results of physical or mental
examinations, experiments or scientific tests." Contrary to Alhashimi's claim otherwise, the
officer's testimony regarding his stride measurements in the parking lot does not constitute a
scientific test. See State v. Goble, 5 Ohio App.3d 197 (9th Dist.1982), paragraph two of the
syllabus (finding "common-sense" investigative work performed by an officer regarding
possible routes taken by a defendant does not constitute discoverable "scientific tests or
experiments"). Rather, the stride measurements taken by the officer constituted routine
police observations and Alhashimi had the opportunity to cross-examine the officer on the
issue. Further, Alhashimi was on notice that the state intended to present evidence
regarding juveniles within 100 feet of the area of the transaction, as discussed above.
Therefore, the trial court did not abuse its discretion in permitting testimony regarding the
officer's stride measurements.
{¶ 58} With respect to the text messages, the trial court found the prosecutor did not
willfully fail to disclose the text messages, but limited the scope of the messages use at trial
to refreshing a witness' recollection or as demonstrative aids. Assuming arguendo the
prosecutor willfully failed to disclose the text messages, Alhashimi does not assert any
resulting prejudicial effect. While Alhashimi expresses his displeasure with the timing of the
prosecutor's disclosure of the text messages, he does not demonstrate how the timing of the
disclosure prejudiced him. See State v. Litton, 12th Dist. Preble No. CA2016-04-005, 2016-
Ohio-7913, ¶ 13 (finding appellant's claim pursuant to Crim.R. 16 failed because appellant
could not demonstrate any resulting prejudice); State v. Self, 112 Ohio App.3d 688, 692 (12th
Dist.1996) ("[i]n the absence of any showing of * * * prejudice to appellant, we cannot say
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that the trial court abused its discretion in denying appellant's discovery motions").
Therefore, the trial court did not abuse its discretion in permitting the text messages to be
used in a limited capacity.
{¶ 59} Accordingly, Alhashimi's fifth assignment of error is overruled.
{¶ 60} Assignment of Error No. 6:
{¶ 61} THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES.
{¶ 62} Alhashimi contends the trial court erred in imposing consecutive sentences
because the record clearly did not support its findings that the harm caused by the offenses
was so great or unusual that no single prison term could adequately reflect the seriousness
of Alhashimi's conduct.
{¶ 63} R.C. 2953.08(G)(2) sets forth the standard of review for all felony sentences.
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1; accord State v. Crawford, 12th
Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6. Pursuant to R.C. 2953.08(G)(2),
when hearing an appeal of a trial court’s felony sentencing decision, “[t]he appellate court
may increase, reduce, or otherwise modify a sentence that is appealed under this section or
may vacate the sentence and remand the matter to the sentencing court for resentencing.”
{¶ 64} As explained in Marcum, "[t]he appellate court’s standard for review is not
whether the sentencing court abused its discretion." Marcum at ¶ 9. Rather, pursuant to
R.C. 2953.08(G)(2), an appellate court may only "increase, reduce, or otherwise modify a
sentence * * * or may vacate the sentence and remand the matter to the sentencing court for
resentencing" if the court finds by clear and convincing evidence "(a) [t]hat the record does
not support the sentencing court’s findings[,]" or "(b) [t]hat the sentence is otherwise contrary
to law." R.C. 2953.08(G)(2)(a)-(b). A sentence is not "clearly and convincingly contrary to
law where the trial court considers the principles and purposes of R.C. 2929.11, as well as
the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the
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defendant within the permissible statutory range." State v. Ahlers, 12th Dist. Butler No.
CA2015-06-100, 2016-Ohio-2890, ¶ 8, citing State v. Moore, 12th Dist. Clermont No.
CA2014-02-016, 2014-Ohio-5191, ¶ 6.
{¶ 65} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step
analysis and make certain findings before imposing consecutive sentences. State v. Blair,
12th Dist. Butler No. CA2014-01-023, 2015-Ohio-818, ¶ 52.
First, the trial court must find the consecutive sentence is
necessary to protect the public from future crime or to punish the
offender. Second, the trial court must find that consecutive
sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the
public. Third, the trial court must find that at least one of the
three circumstances listed in R.C. 2929.14(C)(4)(a)-(c) appl[y].
(Citations omitted.) Id.{¶ 66} R.C. 2929.14(C)(4)(a)-(c) provides:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control
for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶ 67} A trial court is not required to articulate reasons supporting its statutory
findings and need not provide a word-for-word recitation of the statutory language to satisfy
its requirement for imposing consecutive sentences. State v. Childers, 12th Dist. Warren No.
CA2014-02-034, 2014-Ohio-4895, ¶ 31. "Nevertheless, the record must reflect that the trial
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court engaged in the required sentencing analysis and made the requisite findings." State v.
Moore, 12th Dist. Clermont No. CA2014-02-016, 2014-Ohio-5191, ¶ 12. The trial court must
then incorporate such findings into its sentencing entry. Id.{¶ 68} After a thorough review of the record, we find no error in the trial court's
decision to impose consecutive sentences. The record reflects that Alhashimi's sentences
are not clearly and convincingly contrary to law because the trial court considered the
principles and purposes of R.C. 2929.11 and the factors listed in R.C. 2929.12, imposed
postrelease control, and sentenced Alhashimi within the permissible statutory range.
Furthermore, the trial court's sentencing entry explicitly reflects that the trial court:
considered the record, oral statements, any victim impact
statement and presentence report prepared, as well as the
principles and purposes of sentencing under R.C. 2929.11. The
Court has balanced the seriousness and recidivism factors under
R.C. 2929.12 and considered the factors under R.C. 2929.13.
The Court inquired if the Defendant had anything to say in
mitigation regarding the sentence.
{¶ 69} Additionally, the record clearly supports the trial court's finding that the harm
caused by the offenses was so great and unusual that no single prison term adequately
reflects the seriousness of Alhashimi's conduct. Prior to sentencing Alhashimi to consecutive
sentences, the trial court discussed the seriousness of Alhashimi's conduct. The trial court
acknowledged the volume of illegal drugs involved and stated that it thought Alhashimi "knew
exactly what [he was] doing in terms of arranging [the] offenses on multiple days" to avoid the
major drug offender specification. The trial court further noted Alhashimi represented to A.K.
the drugs he sold contained controlled substances when they sometimes did not contain
such. The trial court stated, "selling people fake drugs sometimes creates more problems
and more violence than does some of the actual drugs."
{¶ 70} In light of these facts, the trial court decided to impose consecutive sentences.
The trial court noted that in imposing consecutive sentences it had considered the principles
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and purposes of R.C. 2929.11. The trial court found imposing consecutive sentences was
necessary to the protect the public and to punish Alhashimi, not disproportionate to the
seriousness of his conduct and the danger he poses to the public, and the harm caused was
so great or unusual that no single prison term would adequately reflect the seriousness of the
conduct. The trial court memorialized these findings in its sentencing entry.
{¶ 71} From the trial court's statements at the sentencing hearing and the language
utilized in the sentencing entry, it is clear the trial court complied with the dictates of R.C.
2929.14(C)(4). See State v. Philpot, 12th Dist. Clermont No. CA2013-02-009, 2013-Ohio-
4534, ¶ 15. Therefore, the trial court did not err in imposing consecutive sentences and
Alhashimi's sixth assignment of error is overruled.
{¶ 72} Judgment affirmed.
RINGLAND, P.J., and M. POWELL, J., concur.
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