State v. Fairfield , 2014 Ohio 3417 ( 2014 )

[Cite as State v. Fairfield, 2014-Ohio-3417.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100538
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MATTHEW FAIRFIELD
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-10-543012
BEFORE: Stewart, J., Boyle, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: August 7, 2014
ATTORNEY FOR APPELLANT
Marcus S. Sidoti
Jordan & Sidoti, L.L.P.
50 Public Square, Suite 1900
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Christopher D. Schroeder
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} Defendant-appellant Matthew Fairfield was found guilty of various
counts of illegally harboring explosive devices in his home. In his first appeal, he
argued in part that the trial court erred in failing to merge allied offenses when
sentencing him. We reversed the judgment of the trial court on this issue and
remanded the matter for resentencing. In this appeal, Fairfield argues that the trial
court again erred by failing to follow our mandate and properly merge all of his
convictions into a single offense at sentencing. For the reasons that follow, we
find no error and affirm the judgment of the trial court.
{¶2} In 2010, Fairfield’s estranged wife, acting as a confidential informant,
gave police information that Fairfield was harboring explosive devices and weapons
in the marital home and at another property. Fairfield presumably had stolen the
devices and weapons while he was in the military. The police obtained a search
warrant, seized the items, and arrested Fairfield.
{¶3} Fairfield was indicted on 97 counts of unlawful possession of dangerous
ordnance, receipt of stolen property, possession of criminal tools, failure to secure
dangerous ordnance, perjury, and pandering obscenity involving child pornography.
Fairfield filed a motion to suppress the evidence found at both locations. He
argued that his wife was not a credible informant, spousal privilege prevented his
wife from giving information to the police, and the search warrant was based on
false and misleading evidence. The trial court denied the motion. Fairfield later
entered a plea of no contest to 14 of the counts, and the state dismissed the
remaining counts. The trial court found Fairfield guilty and merged several of the
counts finding that they were allied offenses. He was sentenced to 16 years in
prison.
{¶4} Fairfield appealed his conviction in State v. Fairfield, 8th Dist.
Cuyahoga No. 97466, 2012-Ohio-5060 (“Fairfield I”). In three assignments of
error, he argued that the trial court improperly denied his motion to suppress, that
the court erred by imposing consecutive sentences, and that the court failed to
merge all of the allied offenses for purposes of sentencing. We found merit to
Fairfield’s third assigned error relating to allied offenses, vacated his sentence, and
remanded the case for resentencing.
{¶5} At the sentencing hearing, the trial court merged all counts of
possession of dangerous ordnance, possession of criminal tools, and receiving
stolen property relating to each type of explosive device. Nine of the 14 counts
Fairfield was convicted of were run consecutively. He was sentenced to a total of
nine years in prison.
{¶6} In this appeal, Fairfield argues that on remand the trial court failed to
comply with the mandate of this court in Fairfield I. In particular, he argues that
the court improperly sentenced him to nine consecutive sentences when, with the
exception of a jar of napalm, all the explosive devices were contained in one of two
Pelican cases or containers found at the two properties. Fairfield argues that all the
convictions for possession reflecting the devices found within the two containers
are allied offenses, and therefore the trial court should have only sentenced him
once for these convictions.
{¶7} When a case is remanded, a lower court must “carry the mandate of the
upper court into execution and not consider the questions which the mandate laid at
rest.” State v. Falkenstein, 8th Dist. Cuyahoga No. 99670, 2013-Ohio-5315,  12,
citing State v. Carlisle, 8th Dist. Cuyahoga No. 93266, 2010-Ohio-3407, ¶ 16; see
Sprague v. Ticonic Natl. Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184(1939). When the mandate leaves nothing to decide, the lower court is bound to
execute it. Carlisle, citing Sprague.
{¶8} In Fairfield I, we held that while the trial court properly merged the
category of offenses for the items that were the same (for example, the court
properly merged all counts of possession of a dangerous ordnance relating to four
detonation cords), we found error where the court sentenced Fairfield for
possession of a dangerous ordnance, possession of criminal tools, and receiving
stolen property regarding these same counts. We determined that Fairfield’s
receiving the stolen property also resulted in his unlawfully possessing a dangerous
ordnance and possessing a criminal tool. Id. at  26. With this analysis, we
reversed and vacated Fairfield’s sentence as to those similar charges and remanded
the matter for resentencing.
{¶9} R.C. 2941.25 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.
{¶10} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, ¶ 43, the Ohio Supreme Court determined:
The purpose of merging allied offenses of similar import is as follows:
It has been consistently recognized that the purpose of R.C. 2941.25
is to prevent shotgun convictions, that is, multiple findings of guilt and
corresponding punishments heaped on a defendant for closely related
offenses arising from the same occurrence. This is a broad purpose
and ought not to be watered down with artificial and academic
equivocation regarding the similarities of the crimes. When in
substance and effect but one offense has been committed, a defendant
may be convicted of only one offense.
{¶11} Pursuant to Johnson, there is a two-part test focusing on the
defendant’s conduct in order to determine whether offenses are allied offenses of
similar import under R.C. 2941.25. The first portion of the analysis focuses on
“whether it is possible to commit one offense and commit the other with the same
conduct * * *.” Id. at ¶ 48. It is not required that the commission of one offense
will always result in the commission of the other. Id. Rather, the question is
whether it is possible for both offenses to be committed by the same conduct. Id.
Conversely, if the commission of one offense will never result in the commission of
the other offense, the offenses will not merge. Id. at ¶ 51.
{¶12} In support of his argument for merger into a single count for all the
devices found in both containers, Fairfield points to the following statements made
by this court in Fairfield I:
Here, there is no indication that Fairfield was acquiring the materials
for separate purposes, or had a separate intent or motive in having the
materials. Therefore, the offenses were all committed with the same
animus.
***
[W]e find that under the facts of this case, possession of a dangerous
ordnance, possession of criminal tools, and receiving stolen property
are allied offenses of similar import that must be merged.
Accordingly, we reverse and vacate Fairfield’s sentence as to those
charges and remand for a new sentencing hearing on the offense that
remains after the state selects which allied offense to pursue.
(Citation omitted.)
Fairfield I at  28-29.
{¶13} These statements from Fairfield I are taken out of context. The
statements pertained only to the charges of receipt of stolen property and
possession of criminal tools as being allied to the possession of dangerous ordnance
charge for each particular type of explosive device found in each of the containers.
Nowhere in the language of Fairfield I did we determine that each one of the
explosive devices found at the locations should merge into a single offense.
{¶14} Reviewing courts have rejected similar arguments relating to multiple
count indictments for possession of dangerous ordnance. In State v. Lewis, 2d
Dist. Greene No. 96 CA 12, 1997 Ohio App. LEXIS 1316 (Apr. 4, 1997), the
Second District found unpersuasive the defendant’s argument that his two
convictions for unlawful possession of a dangerous ordnance in violation of R.C.
2923.17 should have merged because in the statute, the term “ordnance” is plural.
The court looked to R.C. 2923.11(K) defining dangerous ordnance and found that
because this definition describes numerous single items that the legislature has
denoted as dangerous ordnance, the term “ordnance” potentially could describe
several items as well as a single item. Therefore, the term “ordnance” relating to
more than one item does not equate to a finding that the defendant may only be
convicted of possessing one. Id. at ¶ 12.
{¶15} This case is analogous to cases where the defendant was sentenced on
multiple counts of drug possession for different types of drugs in the same container
or found at the same location. In State v. Heflin, 6th Dist. Lucas No. L-11-1173,
2012-Ohio-3988, the defendant was found guilty of one count of possessing
cocaine and one count of possessing heroin. The convictions arose from a single
incident where the defendant offered to sell drugs to an undercover police officer.
The defendant appealed his convictions stating he was improperly sentenced on
both offenses where the heroin and the cocaine were found in the same plastic bag
at the time of his arrest. Id. at  9. The Sixth District affirmed the trial court’s
judgment and held that “convictions for simultaneous possession of cocaine and
heroin are not subject to merger as allied offenses of similar import under R.C.
2941.25.” Id. at ¶ 14. See also State v. Huber, 2d Dist. Clark No. 2010-CA-83,
2011-Ohio-6175 (defendant’s multiple convictions arising from possession of the
methadone, hydrocodone, oxycodone, acetaminophen with codeine, and fentanyl
found in the same suitcase were not found to be allied offenses).
{¶16} Fairfield’s argument for merger of all convictions relating to each
different type of explosive device into one conviction is unpersuasive. We find the
trial court properly carried out the mandate of Fairfield I.
{¶17} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________________________
MELODY J. STEWART, JUDGE
MARY J. BOYLE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR