State v. Jones , 2024 Ohio 2959 ( 2024 )

[Cite as State v. Jones, 2024-Ohio-2959.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-23-17
PLAINTIFF-APPELLEE,
v.
JOSHUA JONES, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
CASE NO. 1-23-18
PLAINTIFF-APPELLEE,
v.
JOSHUA JONES, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
CASE NO. 1-23-19
PLAINTIFF-APPELLEE,
v.
JOSHUA JONES, OPINION
DEFENDANT-APPELLANT.
Appeals from Allen County Common Pleas Court
Trial Court Nos. CR 2022-0271, CR 2021-0224 and CR 2021-0353
Judgments Affirmed in Case Nos. 1-23-17 and 1-23-18
Appeal Dismissed in Case No. 1-23-19
Date of Decision: August 5, 2024
Case Nos. 1-23-17, 1-23-18 and 1-23-19
APPEARANCES:
Kimberly E. Burroughs for Appellant
John R. Willamowski Jr. for Appellee
ZIMMERMAN, J.
{¶1} Defendant-appellant, Joshua Jones (“Jones”), appeals the March 30,
2023 judgment entries of sentence of the Allen County Court of Common Pleas.
For the reasons that follow, we affirm appellate case numbers 1-23-18 and 1-23-17
and dismiss appellate case number 1-23-19.
{¶2} On July 14, 2021, the Allen County Grand Jury indicted Jones in case
number CR2021 0224 on Count One of domestic violence in violation of R.C.
2919.25(A), (D)(5), a fifth-degree felony, and Count Two of having weapons while
under disability in violation of R.C. 2923.13(A)(3), (B), a third-degree felony. On
July 22, 2021, Jones filed a written plea of not guilty to the indictment.
{¶3} On November 10, 2021, the Allen County Grand Jury indicted Jones in
case number CR2021 0353 on a single count of domestic violence in violation of
R.C. 2919.25(A), (D)(5), a fifth-degree felony. On November 19, 2021, Jones
appeared for arraignment and entered a plea of not guilty to the indictment in case
number CR2021 0353.
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{¶4} On May 16, 2022, Jones filed a motion in case number CR2021 0224
requesting that the trial court “continue trial in this case or to bar the State from any
additional charges out of this incident” based on the anticipation that “the State
would be considering additional charges based upon the suspected controlled
substances, but that has not yet occurred, nearly a year later, due to unexplained
delays with the State laboratory.” (Case No. CR2021 0224, Doc. No. 53). In
response to Jones’s motion, the trial court on May 20, 2022 granted Jones’s request
to continue the May 21, 2022 trial in case number CR2021 0224.
{¶5} Subsequently, on September 15, 2022, the Allen County Grand Jury
indicted Jones in case number CR2022 0271 on four counts (stemming from the
conduct originating in case number CR2021 0224): Count One of possession of
marihuana in violation of R.C. 2925.11(A), (C)(3)(d), a third-degree felony; Count
Two of possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(a), a fifth-
degree felony; and Counts Three and Four of aggravated possession of drugs in
violation of R.C. 2925.11(A), (C)(1)(b), third-degree felonies. The indictment in
case number CR2022 0271 also included a firearm specification under R.C.
2941.141(A) as to the counts. On September 20, 2022, Jones filed a written plea of
not guilty to the indictment in case number CR2022 0271.
{¶6} As relevant to this appeal, on September 21, 2022, Jones filed a motion
in case number CR2022 0271 requesting that the trial court dismiss the firearm
specifications in that case. Similarly, on September 27, 2022, Jones filed a motion
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to dismiss case number CR2022 0271 for violating his speedy-trial rights. On
October 19, 2022, as relevant here, the State filed memoranda in opposition to
Jones’s motion dismiss the firearm specifications in case number CR2022 0271 and
his motion to dismiss the case for violating his speedy-trial rights. On December
27, 2022, the trial court denied Jones’s motion to dismiss the firearm specifications
in case number CR2022 0271 and his motion to dismiss that case for violating his
speedy-trial rights.
{¶7} In December 2022, Jones filed motions in case numbers CR2021 0224
and CR2022 0271 requesting that the trial court sever Count Two from case number
“CR2021 0224 for trial but then join Count [Two] into the Indictment in [case
number] CR2022 0271 for a second trial for the joined counts.” (Case No. CR2021
0224, Doc. No. 67); (Case No. CR2022 0271, Doc. No. 29). Jones further requested
that Count One in case number CR2021 0353 “should either be severed from these
or, if joined, joined for trial with the Domestic Violence charge in [case number]
CR2021 0224.” (Id.); (Id.). The State did not oppose Jones’s motions and the trial
court granted Jones’s motions to sever Count Two from case number CR2021 0224
and join it for purposes of trial with case number CR2022 0271.
{¶8} Consequently, Count Two in case number CR2021 0224 along with
case number CR2022 0271 proceeded to a jury trial on January 30, 2023. On
January 31, 2023, the jury found Jones guilty of Count Two in case number CR2021
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0224, Counts One through Four in case number CR2022 0271, and the firearm
specification as to Counts One and Four in case number CR2022 0271.
{¶9} On February 8, 2022, Jones withdrew his plea of not guilty in case
number CR2021 0353 and entered a guilty plea to the domestic-violence charge
alleged in the indictment. In exchange for his change of plea, the State agreed to
dismiss the domestic-violence charge in case number CR2021 0224. The trial court
accepted Jones’s guilty plea, found him guilty, dismissed Count Two in case number
CR2021 0224, and ordered a presentence investigation.
{¶10} On March 29, 2023, the trial court sentenced Jones to 12 months in
prison on Count Two in case number CR2021 0224 and to 12 months in prison on
the count in case number CR2021 0353. (Case No. CR2021 0224, Doc. No. 90);
(Case No. CR2021 0353, Doc. No. 47). In case number CR2022 0271, the trial
court sentenced Jones to 24 months in prison on Count One, 6 months in prison on
Count Two, 12 months in prison on Count Three, 24 months in prison on Count
Four, and one year in prison on the firearm specification as to Count Four.1 (Case
No. CR2022 0271, Doc. No. 46). In case number CR2022 0271, the trial court
ordered that Jones serve the prison terms imposed as to Count Four and the
corresponding firearm specification consecutively. Further, the trial court ordered
Jones to serve the prison terms imposed as to Counts One, Two, and Three
1
The trial court filed its judgment entries of sentence on March 30, 2023.
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concurrently to the consecutive prison terms imposed as to Count Four and the
corresponding firearm specification for an aggregate sentence of 36 months in
prison in case number CR2022 0271. The trial court ordered Jones to serve the
prison terms imposed in case numbers CR2021 0224 and CR2021 0353
consecutively to the aggregate prison term imposed in case number CR2022 0271
for a total aggregate sentence of two years and 36 months in prison.
{¶11} Jones filed his notices of appeal on April 19, 2023 in all three cases
and we consolidated the cases for purposes of appeal. Because Jones did not assign
any error as to case number CR2021 0353, assigned appellate case number 1-23-19,
we dismiss that case. See App.R. 12 and 16.
{¶12} Jones raises four assignments of error as to case numbers CR2021
0224 and CR2022 0271, assigned appellate case numbers 1-23-18 and 1-23-17,
respectively.
First Assignment of Error
The trial court applied the wrong legal analysis to Mr. Jones’
motion to dismiss one-year gun specifications in case number CR
2022-0271 as violative of the Second Amendment of the United
States Constitution and of Article I, Section 4 of the Ohio
Constitution. New York State Rifle & Pistol Ass’n v. Bruen, 142
S.Ct. 2111, 213 L.Ed.2d 387 (2021). Judgment Entry on Motions,
filed December 27, 2022 in CR 2022-0271; October 21, 2022
Transcript at 11-14.
{¶13} In his first assignment of error, Jones argues that the trial court erred
by denying his motion to dismiss the firearm specifications in case number CR2022
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0271. Specifically, Jones contends that Ohio’s firearm specification under R.C.
2941.141 is unconstitutional (facially and as applied to him) under New York State
Rifle & Pistol Ass’n, Inc. v. Bruen. 597 U.S. 1, 142 S.Ct. 2111 (2021).
Standard of Review
{¶14} “Generally, we review a trial court’s decision on a motion to dismiss
an indictment for [an] abuse of discretion.” State v. Hudson, 169 Ohio St.3d 216,
2022-Ohio-1435, ¶ 19. An abuse of discretion suggests that a decision is
unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-
158 (1980).
{¶15} However, “appellate courts conduct a de novo review of a trial court’s
decision concerning a defendant’s motion to dismiss all or part of an indictment
based upon a constitutional challenge to the statute under which the defendant
stands indicted.” State v. Wheatley, 4th Dist. Hocking No. 17CA3, 2018-Ohio-464,
¶ 5. See also State v. Bronkar, 5th Dist. Muskingum No. CT2018-0041, 2019-Ohio-
1306, ¶ 12. “De novo review is independent, without deference to the lower court’s
decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27.
Analysis
{¶16} In this case, Jones challenges the constitutionality of Ohio’s firearm
specification as codified under R.C. 2941.141(A), which assesses “an additional
penalty of one year incarceration [in situations where an offender] ‘had a firearm on
or about the offender’s person or under the offender’s control while committing the
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offense.’” State v. Windland, 5th Dist. Licking No. 2023 CA 00068, 2024-Ohio-
1827, ¶ 27, quoting R.C. 2941.141(A). Jones contends that Ohio’s firearm
specification under R.C. 2941.141(A) violates the Second Amendment to the United
States Constitutions and Article I, Section 4 of the Ohio Constitution following the
United States Supreme Court’s decision in Bruen.
{¶17} In Bruen, the United States Supreme Court announced that “when a
statute infringes on a person’s Second Amendment right to bear arms, the burden is
on the State to demonstrate the ‘regulation is consistent with this Nation’s historical
tradition of firearm regulation.’” Id. at ¶ 13, quoting Bruen at 17. Prior to the court’s
decision in Bruen, “a defendant challenging the constitutionality of a firearms
statute bore the burden of proof, and courts used balancing tests in determining the
constitutionality of such statutes.” State v. Parker, 5th Dist. Licking No.
23CA00009, 2023-Ohio-2127, ¶ 27. The court’s decision in “Bruen shifts the
burden of proof and alters [a trial] court’s standard of review for determining the
constitutionality of statutes regulating firearms.” Id. “Courts, however, are not
‘obliged to sift the historical materials for evidence to sustain’ state statutes limiting
the right to carry firearms. That burden falls on the parties presenting the argument.”
Id. at ¶ 28, quoting State v. Jackson, 8th Dist. Cuyahoga No. 112020, 2023-Ohio-
2063, ¶ 8.
{¶18} We conclude that the trial court did not abuse its discretion by denying
Jones’s motion to dismiss the firearm specifications in case number CR2022 0271.
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That is, under our de novo review, we conclude that Ohio’s firearm specification
under R.C. 2941.141(A) is constitutional under the United States and Ohio
constitutional provisions protecting the right to bear arms. Accord Windland at ¶
29. Specifically, the record reveals that the State satisfied its burden under Bruen
of demonstrating that R.C. 2941.141(A) is consistent with this Nation’s historical
tradition of firearm regulation. Specifically, citing State v. Isreal, the State
proffered that “the right to bear arms is not absolute and prohibiting someone who
is committing a felony offense from having a firearm on or about his person or under
is [sic] control is a reasonable regulation to the State’s police power * * * .” (Doc.
No. 22, citing 12th Dist. Warren No. CA2011-11-115, 2012-Ohio-4876, ¶ 97).
{¶19} “‘An enactment of the General Assembly is presumed to be
constitutional, and before a court may declare it unconstitutional it must appear
beyond a reasonable doubt that the legislation and constitutional provisions are
clearly incompatible.’” State v. Brown, 3d Dist. Marion No. 9-10-12, 2010-Ohio-
4546, ¶ 9, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955),
paragraph one of the syllabus. “‘That presumption of validity of such legislative
enactment cannot be overcome unless it appear[s] that there is a clear conflict
between the legislation in question and some particular provision or provisions of
the Constitution.’” Id., quoting Xenia v. Schmidt, 101 Ohio St. 437 (1920),
paragraph two of the syllabus.
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{¶20} “A statute may be challenged on constitutional grounds in two ways:
(1) that the statute is unconstitutional on its face, or (2) that it is unconstitutional as
applied to the facts of the case.” Id. at ¶ 10. “To mount a successful facial challenge,
the party challenging the statute must demonstrate that there is no set of facts or
circumstances under which the statute can be upheld.” Id.. “Where it is claimed
that a statute is unconstitutional as applied, the challenger must present clear and
convincing evidence of a presently existing set of facts that make the statute
unconstitutional and void when applied to those facts.” Id..
{¶21} “The Second Amendment to the United States Constitution provides:
‘A well regulated Militia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed.’” State v. Johnson, 8th
Dist. Cuyahoga No. 113034, 2024-Ohio-1163, ¶ 16, quoting the Second
Amendment to the U.S. Constitution. “Article I, Section 4 of the Ohio Constitution
sets forth a similar guarantee: ‘The people have the right to bear arms for their
defense and security; but standing armies, in time of peace, are dangerous to liberty,
and shall not be kept up; and the military shall be in strict subordination to the civil
power.’” Windland, 2024-Ohio-1827, at ¶ 28, quoting Article I, Section IV of the
Ohio Constitution.
{¶22} Even assuming without deciding that “the possession of a firearm
while committing a crime is implicated by the Second Amendment to the United
States Constitution and Article I, Section 4 of the Ohio Constitution,” our sister
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courts of appeal have resolved that R.C. 2941.141(A) is not facially
unconstitutional. Id. at ¶ 29. Indeed, courts have observed that the United States
Supreme Court’s decision in “‘Bruen is rife with historical observations that would
exclude from Second Amendment protections individuals that carry firearms to
facilitate crime.’” Id., quoting United States v. Love, 647 F.Supp.3d 664, 670
(N.D.Ind. 2022). Critically, “‘“the people” whose right to bear arms is protected by
the Second Amendment are the “law-abiding,” responsible citizens, not those who
would violate the nation’s laws.’” Id., quoting Love at 670, quoting Bruen at 32.
Consequently, we conclude that R.C. 2941.141(A) is not unconstitutional under the
United States Constitution or the Ohio Constitution. See id. (concluding that this
Nation’s historical limitations on gun ownership “permits the statutory sentence
enhancement for possession of a firearm while committing a crime”). See also State
v. Jenkins, 5th Dist. Licking No. 2023 CA 00058, 2024-Ohio-1094, ¶ 28 (resolving
the constitutionality of an Ohio statute against the framework of the United States
Supreme Court’s prescription in Bruen and concluding that, “[b]ecause the United
States Constitution now equally protects the right of the individual to bear arms, we
see no obvious distinction between the Ohio Constitution and the United States
Constitution”).
{¶23} Furthermore, Jones’s argument that Ohio’s firearm specification under
R.C. 2941.141(A) is unconstitutional as applied to him is without merit.
Specifically, Jones contends that R.C. 2941.141(A) is unconstitutional as applied to
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him because the firearm-specification charges “related to a handgun discovered in
his home and not used during the commission of any crime.” (Appellant’s Brief at
7). Contrary to Jones’s contention, the record reveals that the firearm was
discovered within close proximity to the location where a large amount of marijuana
and methamphetamine was found. Compare State v. Lane, 3d Dist. Allen No. 1-21-
33, 2022-Ohio-3775, ¶ 28 (concluding that the State presented sufficient evidence
supporting Lane’s firearm-specification conviction based on the evidence presented
at trial that “the firearm was located in close proximately [sic] to the location where
the large quantity of cocaine was found”). In other words, Jones was not merely
using the firearm for self-defense. Rather, the record reflects that Jones was using
the firearm to facilitate drug offenses.
{¶24} Consequently, since the Second Amendment to the United States
Constitution and Article I, Section 4 of the Ohio Constitution apply “‘only to those
who are [not] actively violating the nation’s drug laws,’” Ohio’s firearm
specification under R.C. 2941.141(A) is not unconstitutional as applied to Jones.
Windland at ¶ 29, quoting Love at 670. See also Jenkins at ¶ 26 (noting that “Ohio
has long recognized the connection between gun violence and drug trafficking”).
{¶25} For these reasons, we conclude that the trial court did not abuse its
discretion by denying Jones’s motion to dismiss the firearm specifications under
R.C. 2941.141(A) in case number CR2022 0271.
{¶26} Jones’s first assignment of error is overruled.
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Second Assignment of Error
Mr. Jones’ right to a speedy trial was violated when the state
inexcusably delayed at least 423 days in bringing its complete
charges against Mr. Jones for the events of May 31, 2021. R.C.
2945.71; Article I, Section 10 of the Ohio Constitution. State v.
Butcher, 27 Ohio ST.3d 28, 500 N.E.2d 1368 (1986); Barker v.
Wingo, 407 U.S. 514, 530, 95 S.Ct. 2181, 33 L.Ed.23 101 (1972).
Judgment Entry on Motions at 1, filed December 27, 2022 in CR
2022-0271.
{¶27} In his second assignment of error, Jones argues that the trial court erred
by denying his motion to dismiss the indictment in case number CR2022 0271
alleging that his constitutional and statutory speedy-trial rights were violated. Jones
specifically contends that the indictment in case number CR2022 0271 “should be
controlled by the same speedy-trial clock [applicable to case number CR2021 0224]
because the factual grounds for both indictments were discovered on the same day.”
(Appellant’s Brief at 13).
Standard of Review
{¶28} “Appellate review of a trial court’s decision on a motion to dismiss for
a speedy-trial violation involves a mixed question of law and fact.” State v.
Westerfield, 3d Dist. Crawford No. 3-17-15, 2018-Ohio-2139, ¶ 17. “‘Accordingly,
a reviewing court must give due deference to the trial court’s findings of fact if they
are supported by competent, credible evidence but will independently review
whether the trial court correctly applied the law to the facts of the case.’” State v.
Gartrell, 3d Dist. Marion No. 9-14-02, 2014-Ohio-5203, ¶ 104, quoting State v.
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Hansen, 3d Dist. Seneca No. 13-12-42, 2013-Ohio-1735, ¶ 20. Consequently, “[t]he
proper standard of review in speedy trial cases is to simply count the number of days
passed, while determining to which party the time is chargeable, as directed in R.C.
2945.71 and 2945.72.” State v. Ferguson, 10th Dist. Franklin No. 16AP-307, 2016-
Ohio-8537, ¶ 12.
Analysis
{¶29} “An accused is guaranteed the constitutional right to a speedy trial
pursuant to the Sixth and Fourteenth Amendments of the United States Constitution
and Ohio Constitution, Article I, Section 10.” Id. “Ohio’s speedy trial statutes,
found in R.C. 2945.71 et seq., were implemented to enforce those constitutional
guarantees.” Id. “R.C. 2945.71 provides the timeframe for a defendant’s right to a
speedy trial based on the level of offense.” State v. Matland, 7th Dist. Mahoning
No. 09-MA-115, 2010-Ohio-6585, ¶ 19. “[A] person against whom a charge of
felony is pending shall be brought to trial within two hundred seventy days after his
arrest.” R.C. 2945.71(C)(2). “The date of the arrest is not included for the purpose
of calculating time under the statutes for a speedy trial.” State v. Taylor, 3d Dist.
Allen No. 1-13-46, 2014-Ohio-1793, ¶ 27. “However, each day the defendant
spends in jail solely on the pending criminal charge counts as three days.” Matland
at ¶ 19, citing R.C. 2945.71(E). “R.C. 2945.72 allows for an extension of the time
that the accused must be brought to trial under certain circumstances.” Taylor at ¶
28.
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{¶30} “‘“[W]hen new and additional charges arise from the same facts as did
the original charge and the state knew of such facts at the time of the initial
indictment, the time within which trial is to begin on the additional charge is subject
to the same statutory limitations period [for speedy-trial time] that is applied to the
original charge.”’” State v. Parker, 113 Ohio St.3d 207, 2007-Ohio-1534, ¶ 18,
quoting State v. Adams, 43 Ohio St.3d 67, 68 (1989), quoting State v. Clay, 9 Ohio
App.3d 216, 218 (11th Dist.1983). However, “‘[w]hen additional criminal charges
arise from facts distinct from those supporting an original charge, or the state was
unaware of such facts at that time, the state is not required to bring the accused to
trial within the same statutory period as the original charge under R.C. 2945.71 et
seq.” Id. at ¶ 19, quoting State v. Baker, 78 Ohio St.3d 108, 112 (1997). “Instead,
the defendant’s speedy trial time begins to run from the time that the subsequent
charge was filed * * * or after the defendant’s arrest, if the state was unable to serve
the defendant with the summons.” State v. Havens, 4th Dist. Ross No. 21CA3745,
2022-Ohio-1712, ¶ 14. See also State v. Sanford, 170 Ohio St.3d 204, 2022-Ohio-
3107, ¶ 25 (recognizing “that when new facts come to light after an arrest, additional
offenses charged may be subject to a new speedy-trial period”).
{¶31} Importantly, our sister courts of appeal have reasoned “that a
subsequent indictment for a drug offense, which was dependent upon a lab analysis
to identify the drug and was not available to the state at the time of the original
indictment, is an additional fact that starts the running of a new speedy trial clock
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for the subsequent charge.” Havens at ¶ 15. See also State v. Mohamed, 10th Dist.
Franklin No. 08AP-960, 2009-Ohio-6658, ¶ 42 (noting that “several appellate
districts have analyzed similar facts and repeatedly found that laboratory results that
were not known at the time of the original indictment constituted ‘additional facts,’
which warranted the triggering of a new speedy trial clock” and that “[t]he Second,
Fourth, Ninth, Eleventh, and Twelfth District Courts of Appeals have all held that a
subsequent indictment which was dependent upon a lab analysis that was not
available to the state at the time of the original indictment starts the running of a
new speedy trial clock”). But see State v. Cooney, 124 Ohio App.3d 570, 573 (1st
Dist.1997); State v. Rutkowski, 8th Dist. Cuyahoga No. 86289, 2006-Ohio-1087, ¶
26.
{¶32} “If a defendant ‘establishes a prima facie case of a violation of his right
to a speedy trial, the burden then shifts to the State’ to demonstrate either that the
statutory limit was not exceeded, or that the State’s time to bring the defendant to
trial was properly extended.” State v. Wagner, 2d Dist. Miami No. 2020-CA-6,
2021-Ohio-1671, ¶ 12, quoting State v. Nichols, 5th Dist. Richland No. 04CA56,
2005-Ohio-1771, ¶ 11. “If the State fails to meet the statutory time limits, then the
trial court must discharge the defendant.” Matland, 2010-Ohio-6585, at ¶ 19, citing
R.C. 2945.73. The Supreme Court of Ohio has ‘imposed upon the prosecution and
the trial courts the mandatory duty of complying’ with the speedy-trial statutes.”
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Id., quoting State v. Singer, 50 Ohio St.2d 103, 105 (1977). Consequently, “the
speedy-trial provisions are strictly construed against the State.” Id.{¶33} In this case, Jones contends that his speedy-trial clock (for case
number CR2022 0271) began running when he was indicted in case number
CR2021 0224. Consequently, Jones maintains that the trial court erred by denying
his motion to dismiss the indictment in case number CR2022 0271 since he was not
brought to trial within 270 days. The State disputes that Jones’s speedy-trial rights
were violated because case number CR2022 0271 was resolved before Jones’s 270-
day speedy trial time expired. That is, the State contends that Jones’s speedy-trial
clock commenced when it filed the indictment in case number CR2022 0271 since
it was based on “additional facts,” which warranted a new speedy-trial clock.
{¶34} Based on our review of the facts and circumstances presented, we
conclude that the State was not subject to the speedy trial time limits of Jones’s
original indictment since the subsequent charges in case number CR2022 0271 were
based on additional facts which were revealed through further investigation. Accord
State v. Armstrong, 9th Dist. Medina No. 03CA0064-M, 2004-Ohio-726, ¶ 9.
Critically, the record reveals that, at the time the charges were filed in case number
CR2021 0224, the State did not have all the information necessary to bring the
additional charges in case number CR2022 0271. See Sanford, 170 Ohio St.3d 204,
2022-Ohio-3107, at ¶ 29. Indeed, the specific facts and circumstances presented
reveal that the charges in case number CR2022 0271 were dependent on Ohio’s
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Bureau of Criminal Investigation’s (“BCI”) laboratory analysis. Accord Armstrong
at ¶ 10.
{¶35} In particular, the record reveals that the identity and quantity of the
substances recovered at Jones’s residence were unknown to law enforcement until
BCI laboratory testing disclosed that “the pressed pills that were recovered”
“included [5.29 grams of] Methamphetamine” as opposed to ecstasy as claimed by
Jones. (Appellee’s Brief at 13). Importantly, BCI’s laboratory analysis was
imperative for the State “to bring the proper charges” because ecstasy and
methamphetamine not only fall on different schedules of controlled substances but
the prohibited bulk amount for each substances is drastically different. (Id.).
Compare Mohamed, 2009-Ohio-6658, at ¶ 52 (analyzing that the “[d]etermination
of the drug’s exact organic make-up is critical to determining the level of the felony
offense with which [a defendant] should be charged, given that possession of this
drug falls into two different schedules”). Specifically, the State explained that, “[i]f
[it] proceeded to charge the drugs improperly as Ecstasy, then the 5.29 grams would
fall well below the bulk amount of 30 grams,” resulting in a “felony of the fifth
degree.” (Appellee’s Brief at 13).
{¶36} Based on the foregoing, we conclude that the State did not have all of
the information necessary to support Jones’s aggravated-possession-of-drugs
charges (as alleged in case number CR2022 0271). See Sanford at ¶ 31-32. That
is, the information specific to the identity and weight of the methamphetamine was
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not available to the State at the time it brought the charges in case number CR2021
0224. Decisively, such information was necessary to charge Jones in case number
CR2022 0271. Consequently, we conclude that a new speedy-trial period began to
run from the date of Jones’s indictment in case number CR2022 0271. See
Armstrong at ¶ 10; Mohamed at ¶ 52.
{¶37} Nevertheless, Jones argues that the subsequent indictment in case
number CR2022 0271 runs afoul of his statutory speedy trial rights because 14
months elapsed between the indictments in case numbers CR2021 0224 and
CR2022 0271. Specifically, Jones alleges that “the state did not explain whether
BCI was responsible for the delay, when precisely the prosecution received the lab
results, or why ‘simple laboratory analysis’ would have necessitated such a long
delay.” (Appellant’s Brief at 14). However, based on our determination that a new
speedy-trial period began to run from the date of Jones’s indictment in case number
CR2022 0271, we conclude that Jones’s argument is without merit. For these
reasons, since Jones does not dispute that he was brought to trial within 270 days of
his indictment in case number CR2022 0271, Jones’s statutory speedy trial rights
were not violated.
{¶38} Even so, Jones contends that his constitutional speedy trial rights were
violated. “Although ‘statutory and constitutional speedy trial [rights] are [generally]
coextensive,’ the constitutional right, as embodied in the Ohio Constitution and the
United States Constitution, ‘may be broader than the * * * statutory right’ in some
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
circumstances.” Wagner, 2021-Ohio-1671, at ¶ 14, quoting State v. Kadunc, 10th
Dist. Franklin No. 15AP-920, 2016-Ohio-4637, ¶ 19. “‘To determine whether a
defendant has been deprived of [their] constitutional speedy-trial rights, a court must
balance four factors: (1) the length of the delay, (2) the reason for the delay, (3) the
defendant’s assertion of a speedy-trial right, and (4) the prejudice to the defendant.’”
State v. Irish, 3d Dist. Mercer No. 10-18-13, 2019-Ohio-2765, ¶ 25, quoting State
v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 88.
{¶39} “However, prior to engaging in any balancing, ‘the court must make a
threshold determination concerning the length of [the] delay.’” Id. at ¶ 26, quoting
Adams at ¶ 89. “‘“Until there is some delay which is presumptively prejudicial,
there is no necessity for inquiry into the other factors that go into the balance.”’”
(Emphasis sic.) Id., quoting State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, ¶
23, quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182 (1972). “A delay
becomes presumptively prejudicial as it approaches one year in length.” Adams at
¶ 90, citing Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686 (1992), fn.
1.
{¶40} In support of his argument that his constitutional speedy trial rights
were violated, Jones merely states (without any further analysis) that “[a]ll four of
the Barker constitutional speedy trial factors weigh in favor of Mr. Jones, and so the
indictment in CR 2022-0271 should have been dismissed on both statutory and
constitutional grounds.” (Appellant’s Brief at 17).
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{¶41} “[A] defendant has the burden of affirmatively demonstrating the error
of the trial court on appeal.” State v. Stelzer, 9th Dist. Summit No. 23174,
2006-Ohio-6912, ¶ 7. “Moreover, ‘[i]f an argument exists that can support this
assignment of error, it is not this court’s duty to root it out.’” Id., quoting State v.
Cook, 9th Dist. Summit No. 20675, 2002-Ohio-2646, ¶ 27. “App.R. 12(A)(2)
provides that an appellate court ‘may disregard an assignment of error presented for
review if the party raising it fails to identify in the record the error on which the
assignment of error is based or fails to argue the assignment separately in the brief,
as required under App.R. 16(A).’” State v. Jackson, 10th Dist. Franklin No. 14AP-
670, 2015-Ohio-3322, ¶ 11, quoting App.R. 12(A)(2). “Additionally, App.R.
16(A)(7) requires that an appellant’s brief include ‘[a]n argument containing the
contentions of the appellant with respect to each assignment of error presented for
review and the reasons in support of the contentions, with citations to the authorities,
statutes, and parts of the record on which appellant relies.’” Id., quoting App.R.
16(A)(7).
{¶42} Notwithstanding Jones’s failure to include an agreement regarding
how his constitutional speedy trial rights were violated, we nevertheless conclude
that his constitutional speedy trial rights were not violated. Importantly, since
Jones’s speedy trial clock began running from the date of Jones’s indictment in case
number CR2022 0271, he cannot demonstrate that any delay was presumptively
prejudicial. See Mohamed, 2009-Ohio-6658, at ¶ 53-65. That is, Jones was indicted
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in case number CR2022 0271 on September 15, 2022 and brought to trial on January
30, 2023.
{¶43} Thus, Jones’s second assignment of error is overruled.
Third Assignment of Error
The trial court violated Mr. Jones’ statutory right to receive a
single punishment for the same offense, and his constitutional
double jeopardy rights to be free from multiple punishments,
when it refused to merge Count 3, Aggravated Possession of
Drugs (Crystal Methamphetamine), with Count 4, Aggravated
Possession of Drugs (Pill Methamphetamine) in CR 2022-0271.
State v. Ruff. 143 Ohio St.3d 144, 2015-Ohio-995, 34 N.E.3d 892;
Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed2d
535 (1983). Sentencing Tr. 11:6-20.
{¶44} In his third assignment of error, Jones argues that the trial court erred
by failing to merge his aggravated-possession-of-drugs convictions as alleged in
Counts Three and Four of case number CR2022 0271. Specifically, Jones contends
that his aggravated-possession-of-drugs convictions are allied offenses of similar
import because “[t]his record contains no evidence that [he] possessed crystal-form
methamphetamine for some purpose distinct from his possession of pill-form
methamphetamine.” (Appellant’s Brief at 22).
Standard of Review
{¶45} Whether offenses are allied offenses of similar import is a question of
law that this court reviews de novo. State v. Stall, 3d Dist. Crawford No. 3-10-12,
2011-Ohio-5733, ¶ 15. Again, “[d]e novo review is independent, without deference
to the lower court’s decision.” Hudson, 2013-Ohio-647, at ¶ 27.
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
Analysis
{¶46} “The Double Jeopardy Clauses of the Fifth Amendment to the United
States Constitution and Article I, Section 10 of the Ohio Constitution prohibit a
criminal defendant from being tried twice for the same offense.” State v. Pendleton,
163 Ohio St.3d 114, 2020-Ohio-6833, ¶ 8. “This prohibition applies to successive
prosecutions as well as to multiple punishments for the same offense.” Id.“Regarding multiple punishments for the same offense, the Double Jeopardy Clause
prohibits ‘the sentencing court from prescribing greater punishment than the
legislature intended.’” Id., quoting Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct.
673 (1983). Thus, “[w]hen determining whether multiple punishments may be
imposed for the same offense, our focus is on legislative intent.” Id. See also
Benvenuto v. Turner, N.D.Ohio No. 3:19-CV-02353, 2023 WL 2711293, *3 (Mar.
30, 2023) (“Ultimately, the double-jeopardy inquiry asks whether the legislature has
authorized cumulative punishments for the same conduct.”).
In Ohio,
R.C. 2941.25 was enacted so that if “‘the same conduct by the
defendant technically amounts to two or more related offenses, he
should be guilty of only one offense,’ and conversely, that if ‘his
conduct amounts to two or more different offenses, or to two or more
offenses of the same kind committed at different times or with a
separate evil purpose as to each, then it should be possible to convict
him of all such crimes.’”
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
Pendleton at ¶ 9, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶
16, quoting Ohio Legislative Serv. Comm., Proposed Ohio Criminal Code 308
(Mar.1971). Specifically, R.C. 2941.25, Ohio’s multiple-count statute, states:
(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.
{¶47} The Supreme Court of Ohio directs us to apply a three-part test to
determine whether a defendant can be convicted of multiple offenses:
“As a practical matter, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts
must ask three questions when defendant’s conduct supports multiple
offenses: (1) Were the offenses dissimilar in import or significance?
(2) Were they committed separately? and (3) Were they committed
with separate animus or motivation? An affirmative answer to any of
the above will permit separate convictions. The conduct, the animus,
and the import must all be considered.”
State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, ¶ 12, quoting State v. Ruff,
143 Ohio St.3d 114, 2015-Ohio-995, ¶ 31. See also State v. Gilmer, 6th Dist. Lucas
No. L-22-1307, 2024-Ohio-1178, ¶ 87 (“If the answer to any of these questions is
‘yes,’ the defendant may be convicted and sentenced for multiple offenses.”). “The
burden is on the defendant to establish his entitlement to the protection provided by
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
R.C. 2941.25 against multiple punishments for a single criminal act.” State v. Artis,
3d Dist. Logan No. 8-18-40, 2019-Ohio-2070, ¶ 44.
{¶48} “As explained in Ruff, offenses are of dissimilar import ‘when the
defendant’s conduct constitutes offenses involving separate victims or if the harm
that results from each offense is separate and identifiable.’” State v. Bailey, 1st Dist.
Hamilton No. C-140129, 2015-Ohio-2997, ¶ 77, quoting Ruff at paragraph two of
the syllabus. “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. The evidence at
trial * * * will reveal whether the offenses have similar import.” Ruff at ¶ 26. “[A]
defendant’s conduct that constitutes two or more offenses against a single victim
can support multiple convictions if the harm that results from each offense is
separate and identifiable from the harm of the other offense.” Id. See also State v.
Daboni, 4th Dist. Meigs No. 18CA3, 2018-Ohio-4155, ¶ 53 (determining that “[t]he
offenses of possession and trafficking in drugs” are generally “similar in
significance and import where * * * the victims of the offense were the same and
the harm was not separate and identifiable”).
{¶49} “The term ‘animus’ means ‘“purpose or, more properly, immediate
motive.”’” State v. Ramey, 2d Dist. Clark No. 2014-CA-127, 2015-Ohio-5389, ¶
70, quoting State v. Grissom, 2d Dist. Montgomery No. 25750, 2014-Ohio-857, ¶
40, quoting State v. Logan, 60 Ohio St.2d 126, 131 (1979). “‘Where an individual’s
immediate motive involves the commission of one offense, but in the course of
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
committing that crime he must * * * commit another, then he may well possess but
a single animus, and in that event may be convicted of only one crime.’” Id., quoting
Logan at 131. “‘Like all mental states, animus is often difficult to prove directly,
but must be inferred from the surrounding circumstances.’” Id. at ¶ 71, quoting
Logan at 131. “‘Thus the manner in which a defendant engages in a course of
conduct may indicate distinct purposes.’” Id., quoting State v. Whipple, 1st Dist.
Hamilton No. C-110184, 2012-Ohio-2938, ¶ 38. “‘Courts should consider what
facts appear in the record that “distinguish the circumstances or draw a line of
distinction that enables a trier of fact to reasonably conclude separate and distinct
crimes were committed.”’” Id., quoting Whipple at ¶ 38, quoting State v. Glenn, 8th
Dist. Cuyahoga No. 94425, 2012-Ohio-1530, ¶ 9.
{¶50} On appeal, Jones argues that the trial court erred by failing to merge
his aggravated-possession-of-drugs convictions under Counts 3 and 4 in case
number CR2022 0271 because “[t]he relevant drug-related statutes do not clearly
indicate that the General Assembly intended to punish crystal-form and pill-form
methamphetamine doubly.” (Appellant’s Brief at 19). In other words, Jones
contends that we need not engage in the three-part analysis because R.C. 2925.11
reflects a legislative intent to calibrate the punishment for the possession offense
based on the aggregate-drug weight. Compare State v. Saxton, 10th Dist. Franklin
No. 18AP-925, 2019-Ohio-5257, ¶ 41 (arguing that the appellate court “need not
engage in the Ruff analysis because R.C. 2925.11, the possession statute, indicates
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
a legislative intent to calibrate the punishment for the offense based on the aggregate
drug weight”).
{¶51} Typically, “‘where two statutory provisions proscribe the “same
offense,” they are construed not to authorize cumulative punishments in the absence
of a clear indication of contrary legislative intent.’” (Emphasis sic.) Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, at ¶ 11, quoting Whalen v. United States, 445 U.S. 684,
692, 100 S.Ct. 1432 (1980). “However, where the statute creating the offense does
not illuminate the General Assembly’s intent on whether multiple punishments
should be imposed, we look to R.C. 2941.25 for guidance.” State v. Merz, 1st Dist.
Hamilton No. C-200152, 2021-Ohio-2093, ¶ 6. Specifically, in situations in which
the facts and circumstances of the case reveal that there are “two separate
occurrences, or if there are separate victims, such as two or more victims in one
occurrence, which are then considered multiple offenses, then courts must
determine whether the multiple offenses are allied ones of similar import under R.C.
2941.25.” State v. Smith, 8th Dist. Cuyahoga No. 104553, 2017-Ohio-537, ¶ 21,
citing Ruff at ¶ 24. That is, in such “situation, the legislative intent behind the
alternative methods of committing a single offense no longer controls the outcome.”
Id. Nevertheless, “[t]he General Assembly’s test in R.C. 2941.25 for determining
whether two offenses are allied offenses of similar import can help a court construe
whether the legislature intended to allow multiple punishments for the same
conduct.” Pendleton, 163 Ohio St.3d 114, 2020-Ohio-6833, at ¶ 11.
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
{¶52} Here, Jones was convicted of aggravated possession of drugs in
violation of R.C. 2925.11(A), (C)(1)(b). That statute provides, in its relevant part,
that “[n]o person shall knowingly obtain, possess, or use a controlled substance or
a controlled substance analog.” R.C. 2925.11(A). The statute elevates the level of
the offense “[i]f the drug involved in the violation is a compound, mixture,
preparation, or substance included in schedule I or II, with the exception of
marihuana, cocaine, L.S.D., heroin, any fentanyl-related compound, hashish, and
any controlled substance analog” and “[i]f the amount of the drug involved equals
or exceeds the bulk amount but is less than five times the bulk amount * * * .” R.C.
2925.11(C)(1)(b). The statute defines a “bulk amount” of a controlled substance, in
relevant part, as,
“[f]or any compound, mixture, preparation, or substance included in
* * * schedule II, * * * [a]n amount equal to or exceeding three grams
of a compound, mixture, preparation, or substance that is or contains
any amount of a schedule II stimulant, or any of its salts or isomers,
that is not in a final dosage form manufactured by a person authorized
by the Federal Food, Drug, and Cosmetic Act and the federal drug
abuse control laws.
R.C. 2925.01(D)(1)(g).
{¶53} Under Counts 3 and 4 in case number CR2022 0271, the State alleged
that Jones possessed methamphetamine, which “is a controlled substance listed in
Schedule II.” State v. Rollins, 3d Dist. Paulding No. 11-05-08, 2006-Ohio-1879, ¶
30. The Revised Code defines “methamphetamine” as including
“methamphetamine, any salt, isomer, or salt of an isomer of methamphetamine, or
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
any compound, mixture, preparation, or substance containing methamphetamine or
any salt, isomer, or salt of an isomer of methamphetamine.” R.C. 2925.01(II).
{¶54} Ohio’s statutes prohibiting drug possession and drug trafficking, R.C.
2925.03 and 2925.11, provide a unique context for the application of the Double
Jeopardy Clause * * * .” Pendleton, 163 Ohio St.3d 114, 2020-Ohio-6833, at ¶ 18.
Specifically, those “statutes create different felony levels and impose different
punishments ‘depending on the type and amount of illegal substance upon which a
criminal charge could be made,’ * * * and because the statutes involve a
presumption about the nature of the substance in order to satisfy the ‘amount’
element.’” Id., quoting State v. Taylor, 113 Ohio St.3d 297, 2007-Ohio-1950, ¶ 14.
{¶55} Generally, it is well established that “‘the legislature intended the
possession of the different drug groups to constitute different offenses.’” State v.
Polachek, 5th Dist. Richland No. 2010-CA-41, 2010-Ohio-5421, ¶ 27, quoting State
v. Delfino, 22 Ohio St.3d 270, 273 (1986). See also State v. Seawright, 8th Dist.
Cuyahoga No. 109489, 2021-Ohio-1100, ¶ 14 (affirming “that different substances,
packaged separately, are not allied offenses of similar import”). In other words,
“the simultaneous possession of two types of drugs constitutes two separate offenses
that do not merge as allied offenses of similar import under R.C. 2925.11.”
(Emphasis added.) State v. Perry, 8th Dist. Cuyahoga No. 105501, 2018-Ohio-487,
¶ 32. See also State v. Quigley, 8th Dist. Cuyahoga No. 105752, 2018-Ohio-1520,
¶ 17 (“The argument that simultaneous possession of more than one drug of the
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
same drug schedule constitutes allied offenses of similar import has been rejected
many times.”).
{¶56} Here, however, Jones was found guilty of committing two separate
counts of possessing the same substance (albeit in different forms).
Notwithstanding that distinction, the specific facts and circumstances of this case
reveal that the plain language of R.C. 2925.11 supports multiple punishments for
Jones’s possession of the same substance in different forms. See Pendleton at ¶ 12.
That is, we conclude that the resolution of this appeal requires us to apply R.C.
2941.25 because the General Assembly’s intent is not clear on the face of R.C.
2925.11. See Saxton, 2019-Ohio-5257, at ¶ 43 (concluding that the three-part
analysis applies because “R.C. 2925.11 [does not] evince[e] an intent to preclude
additional possession charges once the major drug offender threshold has been
reached and the offender possessed the additional drugs at a separate geographic
location”).
{¶57} In support of his argument that his convictions are allied offenses of
similar import under R.C. 2941.25, Jones contends that the “record contains no
evidence that Mr. Jones possessed crystal-form methamphetamine for some purpose
distinct from his possession of pill-form methamphetamine.” (Appellant’s Brief at
22). The State disputes Jones’s argument and argues that “the offenses were
committed separately” and “with separate animus or motivation” because “[t]he
drugs were in different forms, in different locations, and one was found in a
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
backpack which would indicate portability” for purposes of sale. (Appellee’s Brief
at 20). Likewise, the State points to the evidence that Jones “said [in] his interview
that he found the pills and had consumed one, which indicated he was using them
for personal use.” (Id.).
{¶58} Based on the specific facts and circumstances of this case, we
conclude that the trial court did not err by failing to merge Jones’s aggravated-
possession-of-drugs convictions under Counts 3 and 4 in case number CR2022
0271. Accord State v. Gomez, 10th Dist. Franklin No. 16AP-560, 2017-Ohio-8832,
¶ 15, 25 (concluding that “where the facts presented indicate the recovery of stashes
found at separate locations, involving different quantities of drugs,” Gomez did not
demonstrate that his “simultaneous possession of the same type of drug found at
different locations” were “ allied offenses of similar import committed with the
same conduct and without a separate animus”). That is, even though the
methamphetamine was discovered on the same day in Jones’s residence (albeit in
different forms), we conclude that Jones committed the offenses separately and with
a separate animus or motivation.
{¶59} Significantly, this court has concluded that the simultaneous
possession of a single drug in different forms is not dispositive of an allied-offense
analysis. See State v. Kamara, 3d Dist. Union No. 14-18-26, 2019-Ohio-5385, ¶ 47
(concluding that “although powder cocaine and crack cocaine are two different
forms of cocaine, that fact is not dispositive”), citing State v. Brown, 3d Dist. Allen
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
No. 1-10-31, 2011-Ohio-1461, ¶ 41 (holding that “the simultaneous possession of
crack cocaine and possession of powder cocaine are separate and distinct offenses”)
and State v. Cartlidge, 3d Dist. Seneca No. 13-18-33, 2019-Ohio-1283, ¶ 32 (noting
that the fact that two drug packages both contained heroin is “not dispositive” to
determining whether Cartlidge’s convictions for aggravated trafficking in drugs and
aggravated possession of drugs are allied offenses of similar import). Indeed,
“[u]nder Ohio law, the fact that drugs may have been recovered on the same date is
not dispositive of the allied offense issue.” Gomez at ¶ 24.
{¶60} Importantly, courts have analyzed that “although it is possible to
possess a drug with the same animus and conduct necessary to traffic it, once the
drug is initially possessed, a separate animus ‘distinct in time, supported by different
conduct’ can take place resulting in the additional offense being committed
separately.” Daboni, 2018-Ohio-4155, at ¶ 53, quoting State v. Rodriguez, 12th
Dist. Butler No. CA2015-02-024, 2016-Ohio-452, ¶ 29. “Thus, possession and
trafficking offenses may be allied offenses of similar import, or not, depending on
the particular facts and motivations of those involved.” Id. See also State v. Kremer,
12th Dist. Warren No. CA2017-07-115, 2018-Ohio-3339, ¶ 36 (affirming “that
possession and trafficking can constitute allied offenses of similar import, except in
instances where the offenses are committed separately or where a different animus
or motivation is apparent”).
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
{¶61} In this case, the record reveals that law enforcement recovered
differing quantities of the pill-form methamphetamine and crystal-form
methamphetamine in different locations of Jones’s residence. Accord Gomez at ¶
25 (analyzing “that law enforcement officials recovered differing quantities of
heroin in different locations on the date at issue”). See also Kamara at ¶ 45
(analyzing that “the powder cocaine and crack cocaine were packaged separately”;
that “[t]he packages also contained two different quantities of cocaine”; “the two
packages were found on different locations on McWilliams’s body” and “the two
packages contained different forms of the substance to be purchased by different
users”). Specifically, after searching Jones’s residence on May 31, 2021, law
enforcement recovered 5.11 grams of methamphetamine in crystal form and 12.8
grams of methamphetamine in pill form. (See Jan. 30-31, 2023 Tr., Vol. I, at 237,
282). The crystal-form methamphetamine was discovered in close proximity to
digital scales with white residue along with creatine powder, which is “used to * *
* cut drugs for sale.” (Id. at 232). Separately, law enforcement recovered the pill-
form methamphetamine from a backpack that also contained a large amount
marijuana. The backpack containing the drugs was found hidden in a pile of
clothing, which was situated next to the door of Jones’s residence. Also hidden in
the pile of clothing was a firearm.
{¶62} Based on these facts, we conclude that Jones possessed the pill-form
methamphetamine and crystal-form methamphetamine separately and with a
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
separate animus or motivation. See State v. Delgadillo-Banuelos, 10th Dist.
Franklin No. 18AP-729, 2019-Ohio-4174, ¶ 20 (concluding that “where the facts
presented indicate law enforcement’s recovery on the same date of differing
quantities of the same type of illicit substance at different locations, R.C. 2941.25
permits a conviction and sentence for each of the offenses”). Critically, the record
reveals that law enforcement discovered two distinctly different stashes of
methamphetamine in this case. See id. at ¶ 18, quoting Gomez at ¶ 20, fn. 1
(identifying “federal courts [that] ‘have held that convictions for multiple counts of
possession on the same date involving distinct stashes of drugs do not raise
multiplicity or double jeopardy issues’”). Moreover, the record reveals that pill-
form methamphetamine and crystal-form methamphetamine were not only in
different forms but they were also packaged separately. Compare Kamara at ¶ 47
(“The packaging of the bag of crack cocaine separately from the powder cocaine
demonstrates the separate animus of preparation for sale to at least two different
drug users.”); Cartlidge, 2019-Ohio-1283, at ¶ 32 (concluding that the possession
and trafficking convictions were not allied offenses of similar import because “the
drugs were packaged separately”).
{¶63} Consequently, we conclude that Jones “possessed the drugs
separately, and with a separate animus or motivation.” State v. Wolfe, 5th Dist.
Muskingum No. CT2021-0021, 2022-Ohio-117, ¶ 36. See also Rodriguez, 2016-
Ohio-452, at ¶ 28 (concluding that there was “nothing in the record * * * to establish
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
that Rodriguez possessed the marijuana and trafficked a portion of it with only one
animus or motivation, or that his offenses did not occur separately”). Thus, the trial
court did not err by failing to merge Jones’s aggravated-possession-of-drugs
convictions.
{¶64} Jones’s third assignment of error is overruled.
Fourth Assignment of Error
The state racially discriminated against Mr. Jones’ [sic] by using
its preemptory [sic] challenges to strike all black jurors from his
trial jury, violating his right to equal protection of the laws under
the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79, 106
S.Ct. 1712, 90 L.Ed.2d. 69 (1986). Trial Tr. Vol. I, at 56:4-59:20;
181:7-11; 63:16; 61:6-64:18; 181:11-15; 181:21-8.
{¶65} In his fourth assignment of error, Jones contends that the State,
“[u]sing two of its four peremptory challenges,” “struck two of two black jurors
who had any reasonable chance of being seated on [his] jury” in violation of Batson
v. Kentucky. (Appellant’s Brief at 23, citing 476 U.S. 79, 106 S.Ct. 1712 (1986)).
In particular, Jones contends that the trial court erroneously reasoned that the State’s
race-neutral reasons for excusing the jurors were pretextual for racial
discrimination.
Standard of Review
{¶66} “The decision of a trial court regarding a prosecutor’s motives for
exercising a peremptory challenge is a factual determination which will not be
overturned unless clearly erroneous.” State v. Powers, 92 Ohio App.3d 400, 405-
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
406 (10th Dist.1993). See also State v. Prieto, 7th Dist. Mahoning No. 15 MA 0200,
2016-Ohio-8480, ¶ 47 (“We do not reverse a trial court’s decision on intentional
discrimination unless the court was clearly erroneous in accepting the state’s
explanation as genuine (as opposed to pretextual).”). But, this court “must defer to
the trial court’s credibility decision.” Prieto at ¶ 47. “‘Under the clearly erroneous
standard of review, a reviewing court can only reverse if it is “left with the definite
and firm conviction that a mistake has been committed.”’” State v. Hawkins, 3d
Dist. Allen No. 1-18-08, 2018-Ohio-4649, ¶ 9, quoting State v. Williams, 8th Dist.
Cuyahoga No. 100488, 2014-Ohio-3138, ¶ 8, quoting Anderson v. Bessemer City,
470 U.S. 564, 573, 105 S.Ct. 1504 (1985). See also Snyder v. Louisiana, 552 U.S.
472, 477-479, 128 S.Ct. 1203 (2008) (noting that appellate courts employ a “highly
deferential standard of review” when evaluating trial courts’ resolutions of Batson
challenges).
{¶67} “If, however, a trial court does err in applying Batson, the error is
structural.” State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 53. “A
structural error is a constitutional defect that defies analysis by harmless error
standards, because it affects the framework within which the trial proceeds, rather
than simply being an error in the trial process itself.” State v. Fields, 12th Dist.
Butler No. CA2005-03-067, 2005-Ohio-6270, ¶ 27.
Structural error affects the substantial rights of a criminal defendant,
even absent a specific showing that the outcome of the trial would
have been different, and requires automatic reversal. Because a
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
defendant is relieved of his burden to show prejudice, the finding of
structural error is rare and limited to exceptional cases.
State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 53 (Moyer, J., concurring
in judgment only). The “‘limited class of cases’” recognizing structural error are
cases “in which the errors permeate the ‘entire conduct of the trial from beginning
to end,’ so that the trial court cannot ‘“reliably serve its function as a vehicle for
determination of guilt or innocence.”’” Fields at ¶ 27, quoting Arizona v.
Fulminante, 449 U.S. 279, 309-310, 111 S.Ct. 1246 (1991), quoting Rose v. Clark,
478 U.S. 570, 577-578, 106 S.Ct. 3101 (1986).
Analysis
{¶68} “‘In Batson v. Kentucky, the United States Supreme Court held that
“the Equal Protection Clause forbids the prosecutor to challenge potential jurors
solely on account of their race.”’” State v. Pope, 3d Dist. Marion No. 9-06-61, 2007-
Ohio-5485, ¶ 7, quoting State v. Douglas, 3d Dist. Marion No. 9-05-24, 2005-Ohio-
6304, ¶ 28, quoting Batson, 476 U.S. at 89. “The Court stated that a defendant can
demonstrate a violation of his equal protection rights pursuant to the Fourteenth
Amendment of the United States Constitution by showing that the State’s use of
peremptory challenges at the defendant’s trial was used to intentionally exclude
members of the defendant’s race.” State v. Evans, 3d Dist. Allen No. 1-10-22, 2010-
Ohio-4813, ¶ 6.
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
{¶69} “‘“A court adjudicates a Batson claim in three steps.”’” State v.
Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, ¶ 64, quoting State v. Bryan, 101
Ohio St.3d 272, 2004-Ohio-971, ¶ 106, quoting State v. Murphy, 91 Ohio St.3d 516,
528 (2001). “‘First, the opponent of the peremptory challenge must make a prima
facie case of racial discrimination.’” Id., quoting Bryan at ¶ 106. “At the first step
of the Batson inquiry, the defendant is not required to demonstrate that ‘the
challenge was more likely than not the product of purposeful discrimination.’”
Hawkins, 2018-Ohio-4649, at ¶ 9, quoting Johnson v. California, 545 U.S. 162, 170-
173, 125 S.Ct. 2410 (2005). “‘Instead, a defendant satisfies the requirements of
Batson’s first step by producing evidence sufficient to permit the trial judge to draw
an inference that discrimination has occurred.’” Id., quoting Johnson at 170.
{¶70} “‘Second, if the trial court finds [a prima facie case of discrimination],
the proponent of the challenge must provide a racially neutral explanation for the
challenge.’” Frazier at ¶ 64, quoting Bryan at ¶ 106. “At the second step of the
inquiry, ‘“the issue is the facial validity of the prosecutor’s explanation.”’” Hawkins
at ¶ 10, quoting Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, at ¶ 51, quoting
Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859 (1991). “While ‘it is
not enough to simply deny a discriminatory motive or assert good faith,’ the
‘“explanation need not rise to the level justifying exercise of a challenge for
cause.”’” Id., quoting Thompson at ¶ 51, quoting Batson at 97. “Accordingly,
‘“[u]nless a discriminatory intent is inherent in the prosecutor’s explanation, the
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
reason offered will be deemed race neutral.”’” Thompson at ¶ 51, quoting Purkett
v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769 (1995), quoting Hernandez at 360.
{¶71} “Finally, in step three, ‘the trial court must decide, based on all the
circumstances, whether the opponent has proved purposeful racial discrimination.’”
Hawkins at ¶ 11, quoting Frazier at ¶ 64. “In step three, the trial court may not
simply accept a proffered race-neutral reason at face value, but must examine the
prosecutor’s challenges in context to ensure that the reason is not merely
pretextual.” Frazier at ¶ 65. When assessing “whether the State’s race-neutral
reasons for using a peremptory challenge to strike a potential juror from the venire
are merely pretextual,” a court should consider:
“(1) the bare statistics; (2) the similarity of answers to voir dire
questions by African-American jurors who were peremptorily
challenged and answers by non-African-American prospective jurors
who were allowed to serve; (3) broader patterns of practice, including
jury shuffling; (4) disparate questioning of African-American and non
African-American jurors; and (5) evidence that the prosecutor’s office
has historically discriminated against African-Americans in jury
selection.”
Hawkins at ¶ 17, quoting State v. Smith, 12th Dist. Butler No. CA2009-02-038,
2010-Ohio-1721, ¶ 87. “‘[T]he rule in Batson provides an opportunity to the
prosecutor to give the reason for striking the juror, and it requires the judge to assess
the plausibility of that reason in light of all evidence with a bearing on it.’” Frazier
at ¶ 65, quoting Miller-El v. Dretke, 545 U.S. 231, 251-252, 125 S.Ct. 2317 (2005).
“However, * * * trial court[s] [are] not compelled to make detailed factual findings
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
to comply with Batson.” Id. at ¶ 98. “If the trial court determines that the proffered
reason is merely pretextual and that a racial motive is in fact behind the challenge,
the juror may not be excluded.” Id. at ¶ 65.
{¶72} In this case, Jones challenged the State’s use of two peremptory
challenges to strike the only two black jurors on the panel. In particular, during voir
dire, the State exercised its peremptory challenges and excused four jurors: M.U.
(a 46-year-old black male), Ja.B. (a 67-year-old white male), Ju.B. (a 68-year-old
black female), and K.D. (a 53-year-old white female). (See Jan. 30-31, 2023 Tr.,
Vol. I. at 180); (Juror Questionnaires Nos. 71, 536, 853, 943). Following the State’s
use of its peremptory challenges, Jones challenged the State’s decision to excuse
M.U. and Ju.B. under Batson. Specifically, Jones argued that, since the main issues
include “two relatively politically charged issues; * * * one is gun laws and one is
drug laws,” the State’s decision to excuse the black jurors appeared to be racially
motivated. (Jan. 30-31, 2023 Tr., Vol. I. at 170-171). That is, Jones alleged that the
State excused “the only two black jurors who were either on the panel or likely to
be on the panel” for expressing concerns regarding marijuana laws but did not
excuse the potential white jurors who expressed opinions regarding gun laws. (Id.).
{¶73} In response to Jones’s challenge, the State asserted its race-neutral
reasons for exercising its peremptory challenges against M.U. and Ju.B.:
[The State]: The only two people to voice that they had strong
opinions on the drug laws * * * were [M.U. and Ju.B.].
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
[M.U.] said that he thought the laws were B.S. and that
* * * marijuana should be regulated much like alcohol.
[Ju.B.] was in agreement with that. Although they did
say they would follow the law, obviously there are still
concerns when someone feels that strongly about
things.
As far as the gun laws * * * there were a couple of
gentlemen in the back who did state that they had strong
feelings on gun laws. * * * They began talking about
ATF overreaching and bump stocks and all things that
don’t really apply to this case and really have nothing to
do with this case.
(Id. at 175). In sum, the State argued that, “where the two that are being challenged
on the Batson challenge were excused[,] their strong feelings were directly on point
with a charged count in this [case]. Whereas, the gun laws were more kind of an
issue that we don’t have here.” (Id.). Moreover, the State proffered that it learned
(during voir dire) that Ju.B.’s son has felony drug-trafficking convictions. (See id.
at 175-176).
{¶74} Thereafter, the trial court denied Jones’s Batson challenge after
concluding that the State provided “non discriminatory reasons” for dismissing
M.U. and Ju.B. (Id. at 183).
{¶75} On appeal, Jones does not argue either that the trial court erred by
finding that he established a prima facie case of discrimination or that the State did
not offer race-neutral justifications for exercising its peremptory challenges to
excuse M.U. and Ju.B. Instead, Jones’s argument turns solely on whether the trial
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
court properly conducted the third step of a Batson inquiry. Consequently, we will
limit our analysis to only that issue. Accord Hawkins, 2018-Ohio-4649, at ¶ 16.
{¶76} Here, Jones argues that the State’s race-neutral reasons for excusing
M.U. and Ju.B. were merely pretextual because “[o]f the five total jurors who
expressed political misgivings about the policies underpinning gun and drug
possession crimes, the state struck 100% of the black jurors and 0% of the white
jurors” and “[o]nly one inference explains such disparate treatment—the state
harbored a discriminatory intent.” (Appellant’s Brief at 26). More specifically,
Jones contends that the State’s reasons for dismissing the potential black jurors were
pretextual because the State did not further probe the jurors’ “Second Amendment
opinions about handgun possession within the home.” (Id. at 27). That is, Jones
suggests that “if the state’s true concern was for a juror’s political views, and not
his or her race, it could have struck two of the three white jurors whose political
views suggested antipathy towards [sic] gun possession criminalization” but that,
“[i]nstead, it struck two jurors who expressed no political bias whatsoever.” (Id.).
{¶77} The State counters Jones’s argument and maintains that its “race
neutral reasons were appropriate” because M.U. and Ju.B. “were both animated in
their demeanor” “when asked about the legality of marijuana” and because Ju.B.’s
son “had a conviction for drug trafficking.” (Appellee’s Brief at 26-27). Moreover,
the State disputes Jones’s “attempt to compare the answers of” M.U. and Ju.B.
“about drug crimes to those of three white jury members who had strong opinions
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
about firearm regulations” and asserts that it “distinguished between the jurors who
thought the marijuana laws are ‘B.S.’ and the jurors who disliked a proposed federal
regulation that had no bearing on the case.” (Id. at 27-28).
{¶78} Based on our review of the record, we conclude that the trial court’s
rejection of Jones’s Batson challenge is not clearly erroneous. Unquestionably,
there is no evidence in the record that the State engaged in jury shuffling or that the
Allen County prosecutor’s office has historically discriminated against potential
black jurors in the jury-selection process. Accord Hawkins, 2018-Ohio-4649, at ¶
18 (concluding that “[t]he State did not employ practices such as jury shuffling
during the selection of Hawkins’s jury, and there is no evidence that the Allen
County prosecutor’s office has historically discriminated against black potential
jurors in the jury-selection process”). Likewise, there is no evidence in the record
of disparate questioning of potential black or non-black jurors. See id. (“Moreover,
an examination of the transcript of the entire voir dire process does not reveal that
the State systematically asked black potential jurors different questions—either in
tone or in substance—than it asked non-black potential jurors.”).
{¶79} Furthermore, there is no evidence in the record that the “bare
statistics” support a Batson challenge. Importantly, the record in this case reveals
that the absence of African Americans on Jones’s jury resulted from few African
Americans randomly selected for the original jury pool. Accord Frazier, 115 Ohio
St.3d 139, 2007-Ohio-5048, at ¶ 69. See also Smith, 2010-Ohio-1721, at ¶ 89 (“The
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
lack of African-American jurors could very well be the result of so few African-
American jurors being randomly selected for the original jury pool.”). Indeed, even
though no black jurors served on the jury in this case because the State excused the
only prospective black jurors, the statistical disparity is clarified by the balance of
the remaining evidence. Compare State v. Hunter, 2d Dist. Montgomery No. 22201,
2008-Ohio-2887, ¶ 19 (concluding that the “bare statistics” did not support an
inference that the “only two prospective jurors who were African-American” were
excused because of their race when “no African-American jurors served on the
jury”).
{¶80} Notwithstanding Jones’s suggestion of “similarities” between M.U.
and Ju.B. and three white potential jurors who ultimately served on the jury in
Jones’s trial, we conclude that any such alleged similarities do not definitively show
that the State’s race-neutral reasons for excusing M.U. and Ju.B. were pretextual.
See Hawkins at ¶ 22. “‘If a prosecutor’s proffered reason for striking a black panelist
applies just as well to an otherwise-similar nonblack who is permitted to serve, that
is evidence tending to prove purposeful discrimination to be considered at Batson’s
third step.’” Frazier at ¶ 71, quoting Miller-El, 545 U.S. at 241. See also State v.
Lacey, 7th Dist. Mahoning No. 10 MA 122, 2012-Ohio-1685, ¶ 128 (“‘[A]
prosecutor’s explanation for striking an African-American juror does not pass
muster where a similarly situated Caucasian juror was not stricken.’”), quoting State
v. Belcher, 89 Ohio App.3d 24, 33-34 (10th Dist.1993). “However, while courts
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
can consider the extent to which the State’s race-neutral reasons also apply to
potential jurors against whom the State did not exercise peremptory challenges, such
similarities are not necessarily conclusive proof that the State’s proffered race-
neutral justifications are pretextual.” Hawkins at ¶ 25. “Instead, such similarities
are just one fact to be considered by the trial court in determining the plausibility of
the State’s race-neutral reasons ‘in light of all evidence with a bearing on it.’” Id.,quoting Miller-El at 252.
{¶81} In this case, the similarities between M.U. and Ju.B. and the other
potential jurors who eventually served on the jury in Jones’s trial do not demand a
finding of pretext, especially considering the relevant differences between M.U. and
Ju.B. and other jurors as well as the additional factors negating an inference of
discrimination. Decisively, there was a meaningful, race-neutral difference between
Ju.B. and the other jurors. See id. at ¶ 22. That is, Ju.B.’s son was convicted of
felony-drug trafficking. See State v. Mitchell, 7th Dist. Mahoning No. 14 MA 0119,
2016-Ohio-1439, ¶ 27 (“‘“Removing a juror based on the past criminal history of
him or her, or his or her family member, is a valid, race-neutral reason for raising a
peremptory challenge”’”), quoting Lacey at ¶ 127, quoting State v. Santiago, 10th
Dist. Franklin No. 02AP-1094, 2003-Ohio-2877, ¶ 10.
{¶82} Furthermore, we reject Jones’s contention that the State’s reason for
excusing M.U. (based on his belief regarding the legality of marijuana) was
improper because three potential white jurors expressed political misgivings
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
regarding gun laws but were not peremptory challenged. Indeed, our probe into the
State’s explanation for excusing M.U. (and not the three potential white jurors)
reveals significant differences between M.U.’s beliefs regarding marijuana laws and
the potential white jurors’ beliefs regarding gun laws. Compare Lacey at ¶ 129
(concluding that “[t]he record reveal[ed] significant differences between Mr. [G]
and the other juror’s responses during voir dire”). In other words, M.U. and the
three potential white jurors were not similarly situated.
{¶83} Relevantly, during voir dire, M.U. stated that he “think[s] the laws on
marijuana is [sic] B.S.” in response to the State’s question to the venire regarding
whether anyone had “strong feelings on drug laws.” (Jan. 30-31, 2023 Tr., Vol. I,
at 56). That is, M.U.’s beliefs regarding marijuana laws were directly related to an
issue central to Jones’s case. By contrast, the three potential white jurors expressed
concerns with general governmental overreach—namely, the three potential white
jurors expressed concerns pertaining to a recent ATF rule regarding bump stocks—
in response to the State’s question to the venire regarding whether anyone had “any
strong feelings on gun laws.” (Id. at 61). Critically, the State (and the trial court)
responded to the three potential white jurors’ concerns by stating that “this case
doesn’t involve the ATF or anything” and “that’s not what this case is,” which
dispelled those potential jurors’ concerns. (Id. at 63-64).
{¶84} Evaluating whether the State’s reasons for excusing M.U. were
pretextual, the trial court noted that it “listen[ed] to the questions that were asked,”
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
“[t]he reactions of the different jurors,” and “[t]he things they said.” (Id. at 181).
See Prieto, 2016-Ohio-8480, at ¶ 55 (“The trial court was in the best position to
evaluate the statements of the prosecutor and also those made by the juror during
voir dire.”). Specifically, the trial court judged that M.U. had “a more animated
demeanor when asked about the marijuana, drugs” and “his “feelings of it.” (Jan.
30-31, 2023 Tr., Vol. I, at 181-182). Meanwhile, the trial court acknowledged the
three potential white jurors’ concerns with gun laws and analyzed that “[t]here were
some people who were quite animated over certain aspects,” including “when it
came to guns. In fact, the three gentlemen in the back row were fairly animated
about guns. But, again, as they proceeded it was more like the ATF overstepping
and things like that more, more federal regulations type thing * * * .” (Id. at 181).
{¶85} Consequently, our review of the record reveals that, unlike the sitting
jurors, M.U. expressed disdain for an issue central to the disposition of Jones’s case.
Thus, when considering the content underlying the three potential white jurors’
concerns, the State’s explanation for excusing M.U. was race neutral and is
supported by the record.
{¶86} As a result, any similarities between M.U. and Ju.B. and non-black
prospective jurors who were seated on the jury do not reflect that the State’s race-
neutral reasons for striking M.U. and Ju.B. were pretextual. Therefore, we conclude
that the State’s reasons for exercising its peremptory challenges against M.U. and
Ju.B. were race neutral. That is, “we are not left with a definite and firm conviction
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Case Nos. 1-23-17, 1-23-18 and 1-23-19
that the trial court mistakenly credited the State’s race-neutral reasons for exercising
a peremptory challenge against” M.U. and Ju.B. Hawkins, 2018-Ohio-4649, at ¶
28. Accordingly, the trial court’s decision rejecting Jones’s Batson challenge is not
clearly erroneous. Accord id.; Prieto at ¶ 55.
{¶87} Jones’s fourth assignment of error is overruled.
{¶88} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgments of the trial court in case
numbers CR2021 0224 and CR2022 0271, assigned appellate case numbers 1-23-
18 and 1-23-17, respectively.
Judgments Affirmed in Case
Numbers 1-23-17 and 1-23-18
Appeal Dismissed in
Case Number 1-23-19
MILLER and GWIN, J.J., concur.
/hls
**Judge W. Scott Gwin of the Fifth District Court of Appeals, sitting by
Assignment of the Chief Justice of the Supreme Court of Ohio.
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