State v. Stubbs , 2024 Ohio 839 ( 2024 )

[Cite as State v. Stubbs, 2024-Ohio-839.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff- Appellee, :
No. 112781
v. :
JAMES STUBBS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: March 7, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-675521-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Christopher Woodworth, Assistant
Prosecuting Attorney, for appellee.
Patituce & Associates, LLC, Joseph C. Patituce, and Megan
M. Patituce, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant, James Stubbs (“James” or “Stubbs”), appeals
from the trial court’s judgment convicting him of vandalism and several drug-
related charges and ordering him to forfeit $4,264 and a cell phone. Stubbs raises
five assignments of error for our review.
I. The State failed to present sufficient evidence to prove Mr. Stubbs’s
guilt as to Counts 11, 12, and 13 beyond a reasonable doubt.
II. Mr. Stubbs’s convictions were against the manifest weight of the
evidence.
III. The trial court erred in ordering the forfeiture of the money and
cell phone, because not only was there insufficient evidence, but also
the trial court had improperly instructed the jury as to the State’s
burden.
IV. The trial court erred in admitting evidence regarding an
unindicted rifle over defense objection.
V. The trial court erred in failing to merge Counts 1, 2, and 3.
After review, we find no merit to Stubbs’s first four assignments of error
and overrule them. However, we find merit in part to Stubbs’s fifth assignment of
error. Specifically, we agree with Stubbs that Count 3, possession, and trafficking
under Counts 1 (sell or offer to sell) and 2 (prepare for shipment or distribution) are
allied offenses of similar import, and therefore, possession should merge with either
Count 1 or 2. But we do not agree that the trafficking offenses, Counts 1 and 2, are
allied offenses of similar import. We therefore sustain Stubbs’s fifth assignment of
error in part and overrule it in part. We remand for merger and resentencing. We
otherwise affirm the judgment of the trial court.
I. Procedural History and Facts
In October 2022, Stubbs was indicted on 13 counts, including five
counts of trafficking, six counts of drug possession, one count of possessing criminal
tools, and one count of vandalism. The state alleged that the offenses occurred
between January 19, 2021, and January 28, 2021.
January 19, 2021 Counts:
Count 1, trafficking in violation of R.C. 2925.03(A)(1), a fifth-degree
felony (sell/offer to sell less than 5 grams of cocaine).
Count 2, trafficking in violation of R.C. 2925.03(A)(2), a fifth-degree
felony (prepare/distribute less than 5 grams of cocaine);
Count 3, drug possession in violation of R.C. 2925.11(A), a fifth-degree
felony alleged to have occurred on different dates (less than 5 grams
cocaine).
January 23, 2021 Count:
Count 4, drug possession in violation of R.C. 2925.11(A), a fifth-degree
felony (less than five grams cocaine).
January 28, 2021 Counts:
Count 5, trafficking in violation of R.C. 2925.03(A)(2), a first-degree
felony (100 times the bulk amount of phencyclidine (“PCP”)), with
major drug offender, schoolyard, and forfeiture specifications
involving $4,264 and a cell phone;
Count 6, drug possession in violation of R.C. 2925.11(A), a first-degree
felony (100 times the bulk amount PCP), with a major drug offender
specification and two forfeiture specifications involving the same
money and cell phone;
Count 7, trafficking in violation of R.C. 2925.03(A)(2), a first-degree
felony (exceeds five hundred unit doses but is less than one thousand
unit doses or equals or exceeds fifty grams but is less than one
hundred grams fentanyl-related compound), with a schoolyard
specification and two forfeiture specifications involving the same
money and cell phone;
Count 8, drug possession in violation of R.C. 2925.11(A), a first-degree
felony (exceeds five hundred unit doses but is less than one thousand
unit doses or equals or exceeds fifty grams but is less than one
hundred grams fentanyl), with two forfeiture specifications involving
the same money and cell phone;
Count 9, trafficking in violation of R.C. 2925.03(A)(2), a first-degree
felony (50 to 100 grams heroin), with a schoolyard specification and
two forfeiture specifications involving the same money and cell
phone;
Count 10, drug possession in violation of R.C. 2925.11(A), a first-
degree felony (50 to 100 grams heroin), with two forfeiture
specifications involving the same money and cell phone;
Count 11, drug possession in violation of R.C. 2925.11(A), a fifth-
degree felony (less than 5 grams of cocaine), with two forfeiture
specifications involving the same money and cell phone;
Count 12, possessing criminal tools in violation of R.C. 2923.24(A), a
fifth-degree felony (money with the purpose to use it criminally), with
two forfeiture specifications involving the same money and cell
phone; and
Count 13, vandalism in violation of R.C. 2909.05(B)(2), a fifth-degree
felony.
Stubbs pleaded not guilty to all charges, and the case proceeded to a
jury trial in March 2023. The following evidence was presented at trial.
A. Trial
Detective Nicholas Lombardi, a detective for the Third District Vice
Unit of the Cleveland Police Department, was conducting surveillance of a known
drug dealer near E. 78th Street and Cedar Avenue on January 19, 2021, when he
observed a male standing beside a black Chevy Silverado in a parking lot. Detective
Lombardi saw people approach the male and make a “hand-to-hand * * * possible
exchange” of something. After the exchange, the male would go to his truck for a
brief time and then return to the person. The person and the male would make
another “hand-to-hand” transaction, and the person would then walk away.
Detective Lombardi and other officers followed the black Silverado
in undercover vehicles to a convenience store on Pearl Road. Detective Lombardi
asked a confidential informant (“CI”) to purchase drugs from the male in the parking
lot of the convenience store. Detective Lombardi searched the CI before and after
the search, gave the CI money to purchase the drugs, and observed the transaction
between the CI and the suspected seller. After the transaction, the CI returned to
Detective Lombardi with $20 worth of crack cocaine and $20 worth of marijuana.
The entire transaction lasted approximately 15 seconds. The CI told Detective
Lombardi that the male had given the CI his phone number for future drug
purchases and told the CI that he went by the name of “J-B0.” The male who sold
the drugs then left the convenience store in the Silverado, and the undercover police
officers followed him to a home on Willowdale Avenue. The officers observed the
male enter the rear of the Willowdale home.
Detective Lombardi ran the license plate of the truck; it was registered
to Macio Stubbs (“Macio”). He showed a photo of Macio to the CI. The CI said that
he did not purchase the drugs from Macio. Detective Lombardi did more research
and learned that James Stubbs had lived at the home on Willowdale at one time. He
showed the CI a photo of James Stubbs, and the CI was able to identify him as the
male who sold him the drugs.
Detective Lombardi explained that he and other officers began
surveilling the home on Willowdale because they were trying to determine whether
drugs were being sold out of the home. Detective Lombardi said that James and
Macio entered and exited the home several times on January 21, 2021. Detective
Lombardi also saw James drive a black Jeep as well as the black Silverado to and
from the Willowdale home that day.
Detective Lombardi and other officers decided to collect the trash that
was on the curb of the Willowdale home. They found mail addressed to James and
Macio. They also found a plastic bag that contained white residue, which in fact later
tested positive for cocaine.1
Detective Lombardi obtained a search warrant on January 25, 2021,
to search the Willowdale home. The officers planned to execute it on January 28,
2021.
In the meantime, Detective Lombardi had been trying to set up
another “controlled purchase from the individual known as J-Bo [using] the phone
number” that J-Bo gave the CI. After several attempts, the CI, in Detective
1 The cocaine residue found in the trash pull was what led to Count 4, drug possession in
violation of R.C. 2925.11(A), that allegedly took place on January 23, 2021. The jury found
Stubbs not guilty of this count.
Lombardi’s presence, finally reached J-Bo at the phone number on January 28,
2021. The CI scheduled to meet J-Bo that day at the same convenience store where
he had previously purchased the drugs from J-Bo.
Detective Lombardi explained that the second controlled buy did not
take place, however, because his sergeant decided to “takedown” the Silverado just
before the CI was supposed to meet with J-Bo. Detective Lombardi explained that
a “takedown” happens when officers place one police vehicle in front of a vehicle the
officers are trying to contain and another behind it so that the driver cannot leave.
Sergeant Matthew Nycz was parked in an unmarked vehicle across
the street from the Wendy’s on Pearl Road. He was told to monitor the Wendy’s
parking lot to watch for the black Silverado. He saw the Silverado pull into the
Wendy’s parking lot and broadcast it over the police radio to the detectives working
on the case.
Soon after the broadcast from Sergeant Nycz, Detective Ron Meyers
and another officer parked their takedown vehicles in front of and behind the black
Silverado in Wendy’s parking lot. Detective Meyers explained that a takedown
vehicle does not “have ‘Police’ written all over the side of it, but it does have red and
blue flashing lights and sirens and it’s got a push bar.” He said it is “obviously a
police car, it’s just not as obvious.” 2 Detective Meyers testified that he and the other
2 Detective Meyers said that his takedown vehicle was a “black Crown Vic” but the photo
exhibits that he identified as his takedown vehicle show that it was a Dodge Charger.
officer turned their lights on, jumped out of their vehicles, and ordered the two
occupants, a male and a female, out of the black Silverado. Instead of complying,
the driver “put [the truck] in reverse, smashed into the [takedown vehicle] behind
him to make some room, and then pulled off.” Regarding the condition of his
takedown vehicle, Detective Meyers said that “it was a sad day, because it was a
brand new takedown car [with] 1,500 miles on it,” and the front of it “was banged
up pretty bad.” Detective Meyers identified four photos of the vehicle showing the
damage.
After the Silverado left the Wendy’s parking lot, Sergeant Nycz
watched it “proceed at a high rate of speed going south on Pearl Road.” He began
following the Silverado but lost sight of it when it turned onto Bradwell Avenue.
Sergeant Nycz found the Silverado unoccupied and parked in a driveway on the
“south side” of Bradwell Avenue, between W. 33rd and W. 34th Streets. He notified
other officers and watched the Silverado to see if someone returned to it.
Approximately 20 minutes later, he saw a male approach the truck from the “south
side of the street,” get in it, and drive west towards W. 34th Street. Sergeant Nycz
notified other officers.
Sergeant Nycz waited about ten minutes and then walked to the south
side of the street near the driveway where the truck had been parked. He retraced
the male’s steps where he had seen him walking on the south side of the street. He
could see one set of footsteps in the snow where the male had walked. Sergeant Nycz
explained that in his experience, when people are trying to “evade police from being
apprehended with narcotics or a gun, they tend to throw things on the ground * * *
so if they do get apprehended, they don’t have it on them.” Sergeant Nycz found a
plastic bag with white residue in it (that later tested positive for cocaine) on the
ground near where the male had walked and the truck had been parked. Sergeant
Nycz explained that the ground was “snowy wet, like, slush” but the plastic bag was
dry, which led him to believe that it had just been dropped.
Sergeant Robert Norman responded to Sergeant Nycz’s call
regarding the Silverado heading west on Blackwell Avenue. Sergeant Norman saw
the truck, stopped it, and arrested Stubbs. Sergeant Norman found $4,264 in
Stubbs’s possession, which was mostly in “smaller denominations,” and confiscated
two cell phones. Sergeant Norman gave the money and cell phones to Detective
Lombardi.
Detective Prebhairandip Singh and his partner responded to a police
broadcast to watch for a female walking toward the home on Willowdale Avenue.
The female had been a passenger in the Silverado. Detective Singh said that they
saw a female matching the description near the location given and stopped her. The
female was Alice Wadee, the sister of Macio and James. Detective Singh stated that
as soon as Wadee saw the officers, she immediately started “tearing at her chest” or
reaching for her bra, “almost like she was tearing open something.” Detective Singh
could see “powdery stuff” scatter from “exactly where she was reaching and tearing.”
Detective Singh explained that they “later discovered that she was trying to destroy
the narcotics that were in her blouse.” Wadee’s clothes testified positive for heroin
and fentanyl residue. Other officers searched Wadee and recovered the narcotics
that were on her person, which amounted to 94.57 grams of heroin, fentanyl, and
4-ANPP (a Schedule II drug). Wadee testified that she pleaded guilty to trafficking
heroin.
Detective Lombardi stated that approximately one hour after Stubbs
was arrested, he and other officers executed the search warrant on the Willowdale
home. They used a key obtained from Stubbs when he was arrested to enter the
home. The officers found a digital scale with residue on it in the main bedroom
(Macio and his then-girlfriend’s bedroom), which turned out to be cocaine and
marijuana residue. They also found a box of sandwich bags in the main bedroom, a
Draco firearm in the basement rafters, marijuana, a vile of heroin, a plastic bag
containing fentanyl and heroin, and two large bottles of PCP weighing over 3,100
grams in a trash can outside behind the home.
Detective Lombardi interviewed Stubbs. Stubbs admitted that he
“stayed” at the Willowdale home at one point but had not been there in over a year
except to drop Macio off at the home.
B. Jury Verdict and Sentence
The jury found Stubbs guilty of Counts 1, 2, 3, 11, 12, and 13 and not
guilty of the remaining counts. The trial court sentenced Stubbs to 12 months in
prison on each of Counts 1, 2, and 3 and ordered that they be served concurrent to
each other. The trial court also sentenced Stubbs to 12 months in prison for each of
Counts 11, 12, and 13 and ordered that they be served concurrent to each other. The
trial court then ordered Stubbs to serve Counts 1 and 11 consecutive to one other for
a total of 24 months in prison. It is from this judgment that Stubbs now appeals.
II. Sufficiency of the Evidence
In his first assignment of error, Stubbs argues that his convictions for
Counts 11, 12, and 13 were not supported by sufficient evidence. In Counts 11, 12,
and 13, Stubbs was convicted of drug possession, possessing criminal tools, and
vandalism.
When considering a challenge to the sufficiency of the evidence, we
review the evidence admitted at trial and determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. “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.”
Id. A reviewing court is not to assess “whether the state’s evidence is to be believed,
but whether, if believed, the evidence against a defendant would support a
conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
A. Drug Possession
For drug possession under R.C. 2925.11(A), the state was required to
prove that Stubbs “knowingly obtain[ed], possess[ed], or use[d] a controlled
substance or a controlled substance analog.” Specifically, in Count 11, the state
alleged that Stubbs possessed less than five grams of cocaine on or about
January 28, 2021.
Count 11 involved the plastic bag of white residue that Sergeant Nycz
found on the ground near where the Silverado had been parked in the driveway on
Bradwell Avenue. Stubbs argues that because Sergeant Nycz “did not see anyone
drop” the plastic bag, that “any number of people could have dropped” it. We
disagree that the state presented insufficient evidence on this count. Sergeant Nycz
testified that after he saw the male get in the truck and drive away, he walked to
where the truck had been parked. He found a plastic bag with white residue, that
later testified positive for cocaine, on the ground near where the truck had just been
parked and near where the male had just walked. Sergeant Nycz explained that the
bag appeared to have been “freshly dropped” on the pavement because the bag was
dry, but the ground was wet. Other officers stopped the Silverado soon after it left
the driveway, and Stubbs was driving it. This is sufficient evidence, if believed, that
Stubbs possessed the plastic bag with cocaine residue in it.
B. Possession of Criminal Tools
Stubbs contends that the state failed to present sufficient evidence to
find him guilty of criminal tools for the $4,264 found on Stubbs’s person when he
was arrested. Stubbs argues that “[m]oney, in and of itself, is not a criminal tool,”
and that the state failed to present “evidence that the money in question was used to
facilitate drug transactions.” He maintains that the state attempted to facilitate a
“controlled buy” on January 28, 2021, but did not execute it because of the takedown
attempt. He therefore contends that the state did not prove beyond a reasonable
doubt that the money was connected to any drug transaction. We disagree.
Under the relevant statute, R.C. 2923.24(A), the state had to prove
that Stubbs “possess[ed] or [had] under [his] control any substance, device,
instrument, or article, with purpose to use it criminally.” Prima facie evidence of
criminal purpose includes “[p]ossession or control of any substance, device,
instrument, or article commonly used for criminal purposes, under circumstances
indicating the item is intended for criminal use.” R.C. 2923.24(B)(3).
Although the police did not complete the controlled drug purchase on
January 28 because of the attempted takedown, they knew that Stubbs was going to
be in that area at that time because of the scheduled controlled buy. The CI had
scheduled the January 28 controlled buy by calling the phone number that Stubbs
had given the CI at the controlled buy that took place nine days earlier.3 Therefore,
Stubbs was at the Wendy’s parking lot just before he was supposed to meet the CI at
the convenience store across the street to sell the CI drugs.
Further, when officers stopped the Silverado and subsequently
arrested Stubbs, they confiscated two cell phones and $4,264, which was mostly in
small denominations. Although the police did not find drugs on Stubbs’s person or
3 The CI identified Stubbs as J-Bo, the man who sold him the drugs on January 19, when
Detective Lombari showed him Stubbs’s photo.
in the Silverado, they found a plastic bag with cocaine residue on the ground near
where the Silverado had been parked soon after the attempted takedown.
This court has held that when the state demonstrates a defendant is
in possession of a large amount of money in small denominations, the fact that it
was in small denominations is evidence that the defendant had possession of it to
make change when selling drugs. See State v. Alexander, 8th Dist. Cuyahoga No.
90509, 2009-Ohio-597, ¶ 28, citing State v. Painson, 9th Dist. Summit No. 24164,
2008-Ohio-6623 (“[e]ven money can be a criminal tool if there is evidence that the
currency was in small denominations for making change”). In State v. Larios, 8th
Dist. Cuyahoga No. 83507, 2004-Ohio-5730, we explained:
In cases in which this court has upheld a conviction for possession of
money deemed to be a criminal tool, this court has also consistently
found additional evidence of at least one of the following: that the
defendant was caught in the act of selling drugs; he was also in
possession of a pager which is a known tool for selling drugs, State v.
Burnett, 8th Dist. Cuyahoga No. 70618, 1997 Ohio App. LEXIS 1105(Mar. 20, 1997); he was in possession of marked bills used by a
confidential informant to purchase drugs, State v. Giles, 8th Dist.
Cuyahoga No. 69367, 1996 Ohio App. LEXIS 1800 (May 2, 1996); he
was in possession of currency in small denominations to facilitate
making change to customers[,] State v. Alicea, 8th Dist. Cuyahoga No.
66411, 1994 Ohio App. LEXIS 5155 (Nov. 17, 1994), State v. Jimenez,
8th Dist. Cuyahoga No. 73804, 1998 Ohio App. LEXIS 5574 (Nov. 25,
1998) (in which defendant had $940 consisting of six $50 bills, thirty
$20 bills, and four $10 bills).
Id. at ¶ 28.
While no drugs were found in the Silverado or on Stubbs’s person
when Stubbs was arrested, he was in possession of a large amount of money and two
cell phones. Although pagers used to be a known tool for selling drugs (according to
Larios), cell phones are more common now. See State v. Perry, 8th Dist. Cuyahoga
No. 105501, 2018-Ohio-487, ¶ 20 (cell phones and money are considered “tools of
the trade” for drug traffickers); State v. Hawthorne, 8th Dist. Cuyahoga No. 102689,
2016-Ohio-203, ¶ 21 (“It has long been established that otherwise innocuous objects
such as bags, money, or cell phones can be used as criminal tools in drug trafficking
and these items may constitute circumstantial evidence for drug trafficking.”).
Further, Stubbs’s sister, Alice Wadee, who had been a passenger in
the Silverado during the attempted takedown, was found walking near the home on
Willowdale Avenue with 94 grams of heroin, fentanyl, and another Schedule II drug
on her person. Wadee also had a powdery substance all over her clothes because
she had attempted to dispose of the drugs when she realized that police officers were
approaching her.
The police officers also searched the Willowdale home and found
several kinds of drugs, a digital scale, and packaging material. Detective Lombardi
testified that he saw Stubbs going in and out of the Willowdale home several times,
that he received mail at the home, parked two vehicles at the home, and had a key
to the home in his possession when he was arrested. Although the jury found Stubbs
not guilty of the charges relating to the Willowdale home, we “must review ‘all of the
evidence’ admitted at trial” when determining whether the evidence was sufficient.
(Emphasis sic.) State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888,
¶ 18. In doing that here, we conclude that the evidence connecting Stubbs to the
Willowdale home, along with all the other evidence in this case, establishes that
Stubbs was selling drugs and intended to use the money found in his possession to
carry out that criminal purpose.
We therefore conclude that the state presented sufficient evidence in
this case for a jury to find beyond a reasonable doubt that Stubbs intended to use
the money found in his possession to sell drugs.
C. Vandalism
Stubbs further argues that the state failed to present sufficient
evidence of vandalism under Count 13. R.C. 2909.05(B)(2) makes it a crime to
knowingly cause serious physical harm to property owned by a governmental entity.
R.C. 2909.05(F)(2). Stubbs contends that the evidence was insufficient to prove that
he acted knowingly and to establish that there was serious physical harm to
government property.
1. Knowingly
“A person acts knowingly, regardless of his purpose, when he is aware
that his conduct will probably cause a certain result or will probably be of a certain
nature. A person has knowledge of circumstances when he is aware that such
circumstances probably exist.” R.C. 2901.22(B). Stubbs argues that the evidence is
just as likely that he and his passenger, Alice Wadee, believed that they were being
robbed during the attempted takedown. Even if that is true, that is an argument for
manifest weight of the evidence, not sufficiency of the evidence. The state presented
evidence that two police takedown vehicles pulled behind and in front of the
Silverado. Although they were not marked police vehicles, they did have their red
and blue lights flashing on the dashboards. The officers jumped out of their vehicles
and ordered the occupants out of the Silverado. Detective Meyers said that the
driver and passenger refused to comply and then the driver put the Silverado into
reverse, and “smashed into the zone car behind him to make some room, and then
pulled off.” When the police stopped the truck a short time later, Stubbs was driving.
This evidence, if believed, is sufficient to find that Stubbs acted knowingly.
2. Serious Physical Harm
“Serious physical harm” is defined as “physical harm to property that
results in loss to the value of the property of one thousand dollars or more.”
R.C. 2909.05(F)(2). Stubbs argues that the state failed to present any evidence as
to the value of loss.
Detective Meyers said that after he parked his takedown vehicle
behind the Silverado and ordered the occupants of the truck out of it, Stubbs and his
sister refused to comply. Instead, according to Detective Meyers, Stubbs put the
Silverado into reverse and “smashed into the zone car behind him to make some
room, and then pulled off.” Detective Meyers further testified that “it was a sad day,
because [the Dodge Charger] was a brand new takedown car * * * [with only] 1,500
miles on it at the time and it was * * * banged up pretty bad.” He identified four
photos showing the damage to the takedown vehicle. The state claims that the
photos were sufficient for the jury to use their common knowledge and experience
to determine that the damage to the vehicle exceeded $1,000.
R.C. 2909.11(A) provides, “When a person is charged * * * with a
violation of section 2909.05 of the Revised Code involving property value or an
amount of physical harm of one thousand dollars or more, the jury or court trying
the accused shall determine the value of the property or amount of physical harm[.]”
However, “it is unnecessary to find or return the exact value or amount of physical
harm[.]” Id. R.C. 2909.11(B)(2) provides in relevant part that “the following criteria
shall be used in determining the value of property or amount of physical harm
involved in a violation” of R.C. 2909.05: “If the * * * physical harm is such that the
property can be restored substantially to its former condition, the amount of
physical harm involved is the reasonable cost of restoring the property.”
In this case, the state did not present any direct evidence to establish
the cost of repairing the Dodge Charger. Nonetheless, we conclude that a rational
trier of fact could have reasonably inferred from the facts presented that the cost to
repair the takedown vehicle was more than $1,000. Again, the jurors did not have
to determine the exact value of the damage — just that it was over $1,000. We have
independently reviewed the four photos showing the damage to the front right
section of the takedown vehicle. The photos show damage above and below the front
grill of the vehicle as well as damage to the grill itself and the metal surrounding the
grill. The photos also show damage to the front right panel and to the right bumper.
Based on the damage to several sections of the takedown vehicle, we find that
rational jurors could determine from these photos that the cost to repair the vehicle
was $1,000 or more.
The facts in this case are similar to the facts in State v. Williams, 2d
Dist. Clark No. 2005CA106, 2006-Ohio-4653. In Williams, the defendant was
charged with vandalism under R.C. 2909.05(B)(2) and argued as Stubbs does that
the state did not present sufficient evidence of serious physical harm. The state did
not present direct evidence of the cost to repair the unmarked police vehicle but did
submit photos that showed damage to the right rear door and wheel well. The
Second District explained that the photos “indicated a sizable dent on the lower
portion of the right rear door and the front part of the wheel well, as well as damage
to the paint in those areas.” Id. at ¶ 24. The Second District concluded that although
the officer did not testify at trial how much the repairs would cost, the “jury could
have reasonably concluded, upon review of the photographs, that the damage to the
vehicle would require a substantial amount of money [$500 or more4] to repair.” Id.
at ¶ 24. Based on Detective Meyers’s testimony in this case regarding the damage
and our own independent review of the photos, we conclude that a rational trier of
fact could determine that the damage to the Dodge Charger was more than $1,000.
We, therefore, overrule Stubbs’s first assignment of error.
III. Manifest Weight of the Evidence
In his second assignment of error, Stubbs contends that his
convictions are against the manifest weight of the evidence. While the test for
4 The General Assembly amended the definition of serious physical harm set forth in R.C.
2909.05(F)(2) in September 2011 from $500 of loss of value to property to $1,000 of loss
of value to property. 2011 Am.Sub.H.B. No. 86.
sufficiency requires a determination of whether the state has met its burden of
production at trial, a manifest weight challenge questions whether the state has met
its burden of persuasion. Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541. While
“sufficiency of the evidence is a test of adequacy as to whether the evidence is legally
sufficient to support a verdict as a matter of law, * * * weight of the evidence
addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d
382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. When
a defendant argues his or her conviction is against the manifest weight of the
evidence, the court,
“reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its
way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. The
discretionary power to grant a new trial should be exercised only in
the exceptional case in which the evidence weighs heavily against the
conviction.”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983).
Stubbs argues that the weight of credible evidence supporting his
convictions related to January 19, 2021 — Counts 1 through 3 — did not support the
jury’s verdict. According to Stubbs, the state’s evidence “was simply a ‘trust me that
we have the right guy’ theory.” He contends, inter alia, that the CI was not credible
because the CI could not remember the name of the person who sold the drugs to
him on January 19, 2021, and could not identify the defendant in court. Further,
Stubbs points to the fact that the CI’s testimony describing the seller as having hair
and being “heavyset” did not match Stubbs’s appearance in court (according to the
CI’s testimony, Stubbs was bald and thinner at the time of trial).
We disagree that Stubbs’s convictions for Counts 1 through 3 were
against the manifest weight of the evidence. The trial began in March 2023, over
two years after the CI purchased drugs from Stubbs. Stubbs could have shaved his
head and lost weight from the time of the drug purchase to the time of trial.
Moreover, Detective Lombardi showed the CI a BMV photo of Stubbs in January
2021, soon after the CI purchased drugs from Stubbs when the CI’s memory about
the transaction would have been better, and the CI identified Stubbs as the man who
sold him the drugs.
Stubbs further contends that his convictions relating to Counts 11
through 13 were also against the manifest weight of the evidence.
Count 11 involved the plastic bag of white residue, later confirmed to
be cocaine, that Sergeant Nycz found near the Silverado after Stubbs got in the truck
and drove down Blackwell Avenue. Stubbs argues that the plastic bag could have
just as easily been his passenger’s bag, especially because she was found to have
drugs on her when the police stopped her walking near the Willowdale home. We
disagree. Sergeant Nycz testified that he found the plastic bag where Stubbs had just
walked to get back to the Silverado and drive away. Detective Nycz further testified
that the plastic bag was dry, indicating that it was freshly dropped because the
ground was wet.
Count 12 involved possession of criminal tools, i.e., the $4,264 found
in Stubbs’s possession when he was stopped by the police and arrested. Regarding
the money, Stubbs makes the same arguments that he did for sufficiency of the
evidence. He contends that because the state failed to present sufficient evidence of
possession of criminal tools, the jury lost its way in convicting him of this count. We
disagree. When viewing the evidence that we previously set forth for purposes of
manifest weight of the evidence, we conclude that the jury did not lose its way when
it found Stubbs guilty of possession of criminal tools.
Count 13 involved vandalism. Again, Stubbs mostly makes the same
arguments that he made for sufficiency of the evidence. But he does maintain here
that the evidence establishes that he and his sister, Wadee, who was a passenger in
his truck at the time of the attempted takedown, believed they were being robbed.
He points out that Wadee testified that she had the same belief. He further claims
that due to the “much larger Silverado, it is unclear whether [he] actually saw the
dashboard lights that police testified they had activated.” We disagree. Although
Stubbs’s version of the events is possible, so is the police officers’ version. And after
independently weighing the evidence, we cannot say that the jury clearly lost its way
and created a manifest miscarriage of justice when it found Stubbs guilty of
vandalism.
Having thoroughly reviewed the trial transcript, weighing all the
evidence and reasonable inferences, and considering the credibility of witnesses, we
are unable to conclude that the jury clearly lost its way when finding Stubbs guilty
of Counts 1 through 3 and 11 through 13. Stubbs’s second assignment of error is
overruled.
IV. Forfeiture
In his third assignment of error, Stubbs raises two issues with respect
to forfeiture: he argues that (1) the trial court failed to properly instruct the jury
regarding the state’s burden, and (2) the state failed to present evidence to support
a forfeiture finding in this case.
A. Jury Instructions
Stubbs contends that the trial court improperly instructed the jury on
the state’s burden when proving forfeiture. We agree but find the error to be
harmless.
Whether jury instructions correctly state the law is a legal issue that
an appellate court reviews de novo. State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-
4347, 54 N.E.3d 80, ¶ 135. “‘A reviewing court may not reverse a conviction in a
criminal case due to jury instructions unless it is clear that the jury instructions
constituted prejudicial error.’” State v. Shepherd, 8th Dist. Cuyahoga No. 102951,
2016-Ohio-931, ¶ 25, quoting State v. McKibbon, 1st Dist. Hamilton No. C-010145,
2002-Ohio-2041, ¶ 27.
At the outset, we note that Stubbs failed to object to the trial court’s
jury instruction regarding the state’s burden to prove forfeiture. Stubbs has
therefore forfeited all but plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-
Ohio-2459, 38 N.E.3d 860, ¶ 3. Under Crim.R. 52(B), “plain errors or defects
affecting substantial rights may be noticed although they were not brought to the
attention of the court.” To reverse a trial court under Crim.R. 52(B), three prongs
must be met: (1) there must be an error, (2) it must be “plain” within the meaning
of Crim.R. 52(B); i.e., it must be an obvious defect in the trial proceedings, and
(3) the error must have affected the defendant’s “substantial rights.” State v Barnes,
94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). The third prong means that the trial
court’s error must have affected the outcome of the trial. Id. And even if an offender
demonstrates that the trial court committed plain error that affected the proceeding,
“an appellate court is not required to correct it.” Rogers at ¶ 23. Plain error is to be
invoked “with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.” Id., citing Barnes at 27.
The General Assembly amended R.C. 2981.04(B) in April 2017. See
2016 Am.Sub.H.B. No. 347; State v. Howard, 8th Dist. Cuyahoga No. 105327,
2017-Ohio-8734, ¶ 3, fn. 1. R.C. 2981.04(B) now provides that a trier of fact shall
return a verdict of forfeiture if the state “proves by clear and convincing evidence
that the property is in whole or part subject to forfeiture under section 2981.02 of
the Revised Code.” The prior version of the statute required the state to prove by a
preponderance of the evidence that property was subject to forfeiture. Howard at
¶ 3.
Here, the trial court instructed the jurors that if they found Stubbs
guilty of any offense charged in Counts 5 through 12, then they must “determine
whether the state has proved by a preponderance of the evidence its claim that the
defendant’s” property is subject to forfeiture. After describing the forfeiture
specifications, the trial court defined preponderance of the evidence for the jury,
stating:
Preponderance of the evidence is the greater weight of the evidence;
that is, evidence you believe outweighs or overbalances in your mind
the evidence that goes to it. Preponderance of the evidence that is
more probable, more persuasive or of greater probative value. It is the
quality of the evidence that must be weighed. Quality may or may not
be identical with the quantity or greater number of witnesses or
evidence. In determining whether an issue has been proved by a
preponderance of the evidence, you should consider all the evidence
bearing upon that issue or affirmative defense regardless of who
produced it. If the weight of the evidence is equally balanced or if you
are unable to determine which side of an issue has the preponderance
then the * * * state has not established such issue.
Clear and convincing evidence, however, is that which will produce in
the trier of fact “‘a firm belief or conviction as to the facts sought to be established.’”
In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), quoting
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. Clear and convincing evidence is a higher standard than a preponderance
of the evidence. In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th
Dist.1994).
The trial court erred when it instructed the jury that the state’s burden
was preponderance of the evidence. Nonetheless, we find the error to be harmless
because as we discuss in the following subsection, even under the higher standard,
the state met its burden.
B. Evidence of Forfeiture
Stubbs contends that the state failed to meet its burden to warrant a
forfeiture finding under either a preponderance of the evidence or clear and
convincing standard. We disagree.
R.C. 2981.04(B) requires the state to prove by clear and convincing
evidence that the subject property was subject to forfeiture under R.C. 2981.02.
R.C. 2981.02(A)(1)(a)-(c) specifies three kinds of property that may be forfeited to
the state: (1) contraband involved in an offense, (2) proceeds derived from or
acquired through the commission of an offense, or (3) an instrumentality that is
used in or intended to be used in the commission or facilitation of a felony. Thus,
the state had to prove by clear and convincing evidence that the money and cell
phone were used in the commission of a criminal offense.
The state presented evidence in this case connecting Stubbs to the
Willowdale home, where the police found large amounts of drugs. The police found
mail addressed to Stubbs in the trash on the curb of the Willowdale home and inside
the home when they executed the search warrant. Stubbs also had a key to the
Willowdale home on his person when he was arrested, which the police used to enter
the Willowdale home to execute the search warrant.
Detective Lombardi testified that Stubbs was driving the Silverado
when he sold the drugs to the CI at the first controlled purchase on January 19, 2021.
Detective Lombardi observed the CI enter the Silverado with Stubbs and exit alone
after approximately 15 seconds. The CI identified Stubbs as the person who sold
him the drugs from a BMV photo.
After the first controlled buy, the police followed Stubbs to the
Willowdale home, where they saw Stubbs park the truck and enter the home. The
police subsequently conducted surveillance on the Willowdale home and observed
Stubbs enter and exit the home several times. The police also observed Stubbs
driving the Silverado to and from the home as well as a Jeep that was parked on the
street near the home.
On January 28, 2021, the day that Stubbs was arrested, Detective
Lombardi had the CI call Stubbs at the phone number that Stubbs had given the CI
to make future drug purchases. The CI and Stubbs scheduled a time to meet at the
same convenience store where the first controlled purchase had taken place. The
Silverado arrived at the Wendy’s across the street from the convenience store just
before the second controlled purchase was scheduled to occur. Stubbs was driving
the Silverado at the time of the attempted takedown.
After Stubbs drove away from the gas station, he parked the Silverado
in the driveway of a house on Bradwell Avenue. Detective Nycz found a plastic bag
containing cocaine residue near where the Silverado had been parked and where
Stubbs had just walked to get in the truck. Soon after, the police arrested Stubbs
with the money and cell phone in his possession.
After reviewing the evidence presented at trial, we conclude that the
state proved by clear and convincing evidence that Stubbs used the money and cell
phone to commit drug trafficking.
Stubbs’s third assignment of error is overruled.
V. Admission of Gun Evidence
In his fourth assignment of error, Stubbs argues that the trial court
erred over his objection when it permitted the state to admit evidence of a gun,
specifically an AK-47 rifle, that the police found in the basement of the Willowdale
home when he was not indicted on a crime involving the rifle and there was no
evidence that he possessed or even knew about the rifle. Stubbs contends that this
evidence was “completely irrelevant” and significantly prejudicial.
Evid.R. 404(B) precludes evidence of other acts “to prove the
character of a person in order to show action in conformity therewith.” In State v.
Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, the Ohio Supreme
Court warned that other-weapons evidence — i.e., irrelevant evidence of weapons
unrelated to the charges — falls within the scope of Evid.R. 404(B).
Evid.R. 403 also prohibits the admission of prejudicial evidence even
if it is relevant. Evid.R. 403(A) provides that “evidence is not admissible if its
probative value is substantially outweighed by the danger of unfair prejudice[.]”
“Error in admitting other weapons evidence falls generally into one of
two categories: harmless error or prejudicial error requiring reversal.” Thomas at
¶ 38. “If a court determines that the error did not affect the defendant’s substantial
rights, then the error is harmless and shall be discarded.” State v. Morris, 141 Ohio
St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 23; Crim.R. 52(B). “Cases in which
courts have deemed error in the admission of other weapons evidence to be
harmless generally involved overwhelming independent evidence of guilt.” Thomas
at ¶ 39. Based on our discussion set forth previously regarding manifest weight of
the evidence, we find that the evidence of Stubbs’s guilt in this case to be
overwhelming.
Moreover, even if the trial court erred in admitting the evidence of the
gun found in the rafters of the basement of the Willowdale home, we find the
admission of that evidence was not prejudicial to Stubbs for another reason. The
jury heard testimony regarding all the evidence the police found in the Willowdale
home, including evidence of fentanyl, heroin, and large amounts of PCP in the trash
can outside the home. The jury was clearly not confused, misled, or inflamed by the
evidence. Indeed, the jurors found Stubbs guilty only of the offenses that were
unrelated to the Willowdale home. Therefore, we conclude that the admission of
evidence regarding the rifle did not prejudice Stubbs.
Accordingly, we overrule Stubbs’s fourth assignment of error.
VI. Allied Offenses
In his fifth assignment of error, Stubbs argues that the trial court
erred when it failed to merge Counts 1, 2, and 3 for purposes of sentencing. Count 1
charged trafficking cocaine under R.C. 2925.03(A)(1) (sell or offer to sell). Count 2
charged trafficking cocaine under R.C. 2925.03(A)(2) (prepare for shipment or
distribution). Count 3 charged possession of cocaine under R.C. 2925.11(A). All
three counts stem from one, very brief transaction that took place on January 19,
2021, when Stubbs sold $20 worth of crack cocaine to the CI in the parking lot of the
convenience store on January 19, 2021.
We note at the outset that Stubbs argued at the sentencing hearing
that only Count 3 should merge with Counts 1 and 2. The state countered at the
sentencing hearing that the offenses did not merge. When sentencing Stubbs,
however, the trial court did not mention the issue of allied offenses and sentenced
Stubbs on all three convictions. Stubbs did not object when the trial court failed to
address the issue of allied offenses.
Stubbs is now arguing that the trial court should have merged all
three counts. But because Stubbs did not raise this argument to the trial court and
did not object when the trial court failed to merge any of the counts, he has forfeited
all but plain error. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at
¶ 21. As we previously stated, a forfeited error is not reversible under the plain error
standard “unless it affected the outcome of the proceeding and reversal is necessary
to correct a manifest miscarriage of justice.” Id. at ¶ 3. Applying the plain error
standard to an allied offenses argument, “an accused has the burden to demonstrate
a reasonable probability that the convictions are allied offenses of similar import
committed with the same conduct and without a separate animus.” Id.
Despite the plain error stand of review applying here, we still must
determine de novo whether the offenses are allied offenses of similar import. State
v. Bailey, 171 Ohio St.3d 486, 2022-Ohio-4407, 218 N.E.3d 858, ¶ 13, citing State v.
Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245. In Bailey,
although plain error applied because the defendant had not objected to the trial
court’s failure to merge the offenses, the Supreme Court stated that courts review de
novo whether offenses are allied because the question involves “a legal
determination premised on the specific facts of [the] case.” Id. at ¶ 13. We must
therefore independently determine whether the offenses in this case should have
merged for purposes of sentencing.
R.C. 2941.25 codifies the protections of the Double Jeopardy Clause
of the Fifth Amendment to the United States Constitution and Article I, Section 10
of the Ohio Constitution, prohibiting multiple punishments for the same offense.
State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23.
Pursuant to R.C. 2941.25(A), “[w]here 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.” However,
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.
R.C. 2941.25(B)
The Ohio Supreme Court made clear that “[a]t 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.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34
N.E.3d 892, ¶ 26. “‘[T]his analysis may be sometimes difficult to perform and may
result in varying results for the same set of offenses in different cases. But different
results are permissible, given that the statute instructs courts to examine a
defendant’s conduct — an inherently subjective determination.’” Id. at ¶ 32, quoting
State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 52
(plurality opinion per Brown, C.J.). The court further explained:
Rather than compare the elements of two offenses to determine
whether they are allied offenses of similar import, the analysis must
focus on the defendant’s conduct to determine whether one or more
convictions may result, because an offense may be committed in a
variety of ways and the offenses committed may have different import.
No bright-line rule can govern every situation.
Id. at ¶ 30.
In determining whether offenses are subject to merger for sentencing
under R.C. 2941.25, courts evaluate three separate factors — the import, the
conduct, and the animus. Id. at paragraphs one and three of the syllabus. Offenses
do not merge, and a defendant may be convicted of and sentenced for multiple
offenses if any one of the following is true: (1) the offenses are dissimilar in import
or significance, (2) the offenses were committed separately, or (3) the offenses were
committed with separate animus or motivation. Id. at paragraph three of the
syllabus.
Offenses are dissimilar in import or significance within the meaning
of R.C. 2941.25(B) “when the defendant’s conduct constitutes offenses involving
separate victims or if the harm that results from each offense is separate and
identifiable.” Ruff at ¶ 23. Thus, “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. at ¶ 26. “The evidence at trial or during a plea or sentencing hearing
will reveal whether the offenses have similar import.” Id.
Offenses are committed separately within the meaning of
R.C. 2941.25(B) if “‘one offense was complete before the other offense occurred, * * *
notwithstanding their proximity in time and that one [offense] was committed in
order to commit the other.’” State v. Woodard, 2d Dist. Montgomery No. 29110,
2022-Ohio-3081, ¶ 38, quoting State v. Turner, 2d Dist. Montgomery No. 24421,
2011-Ohio-6714, ¶ 24. Thus, “‘when one offense is completed prior to the
completion of another offense during the defendant’s course of conduct, those
offenses are separate acts.’” Id., quoting State v. Mooty, 2014-Ohio-733, 9 N.E.3d
443, ¶ 49 (2d Dist.).
For purposes of R.C. 2941.25(B), animus has been defined as
“‘purpose or more properly, immediate motive.’” State v. Bailey, 8th Dist. Cuyahoga
No. 100993, 2014-Ohio-4684, ¶ 34, quoting State v. Logan, 60 Ohio St.2d 126, 131,
397 N.E.2d 1345 (1979). “‘If the defendant acted with the same purpose, intent, or
motive in both instances, the animus is identical for both offenses.’” State v. Lane,
12th Dist. Butler No. CA2013-05-074, 2014-Ohio-562, ¶ 12, quoting State v. Lewis,
12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-885, ¶ 13. “Like all mental states,
animus is often difficult to prove directly, but [may] be inferred from the
surrounding circumstances.” Logan at 131.
Stubbs cites State v. Goodson, 8th Dist. Cuyahoga No. 94954, 2011-
Ohio-5820, and State v. Parker, 8th Dist. Cuyahoga No. 99047, 2013-Ohio-3135, in
support of his argument that the offenses should merge. In both cases, under very
similar facts (defendant sold drugs to a CI), this court held that all three offenses —
possession and the same two trafficking charges — merged for purposes of
sentencing. Goodson at ¶ 13; Parker at ¶ 17.
Goodson and Parker, however, relied on Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314, 942 N.E.2d 1061, which predates Ruff, 143 Ohio St.3d 114,
2015-Ohio-995, 34 N.E.3d 892. The Supreme Court explained in Ruff that the law
set forth in Johnson “was incomplete.” Id. at ¶ 16. We must therefore determine
whether these offenses are allied offenses under the three-part test set forth in Ruff.
We first note that Stubbs did not commit these offenses with a
separate animus. Again, all three of the offenses stem from a very brief transaction
in the parking lot of the convenience store when Stubbs sold a $20 bag of crack
cocaine to the CI on January 19, 2021. Stubbs committed them with a single motive
or animus, i.e., to sell crack cocaine.
Next, we address whether the offenses are dissimilar in import or
significance. After reviewing Stubbs’s conduct in this case, we conclude that the
offenses are not dissimilar. There was only one victim. The victim of drug trafficking
offenses is “society in general.” State v. Bontrager, 2022-Ohio-1367, 188 N.E.3d
607, ¶ 16 (4th Dist.); State v. Delgadillo-Banuelos, 10th Dist. Franklin No. 18AP-
729, 2019-Ohio-4174, ¶ 15 (the harm caused by drug trafficking is “only to society in
general”); State v. Martin, 7th Dist. Columbiana No. 18CO0033, 2020-Ohio3579, ¶
59 (the victim in drug possession offenses is “society in general”). And the harm that
resulted to society from each offense was not “separate and identifiable.” Ruff at ¶
23.
Finally, we must determine whether the offenses were committed
separately. Regarding possession and the two trafficking offenses, we conclude that
to commit trafficking under either subsection of R.C. 2925.03, Stubbs necessarily
had to possess the cocaine. Specifically, Stubbs possessed the cocaine to prepare it
for distribution under R.C. 2925.03(A)(2) and then to sell it under
R.C. 2925.03(A)(1). There was no evidence that he separately possessed the cocaine
for his personal use or for some other reason. Therefore, the offense of possession
in Count 3 merges with the two trafficking offenses in Counts 1 and 2, which is what
Stubbs argued at the sentencing hearing.5
Regarding the two trafficking offenses, however, we conclude that
Stubbs committed them separately, and, therefore, they do not merge for purposes
5 At oral argument, the state conceded that possession merged with the trafficking
offenses.
of sentencing. For trafficking under R.C. 2925.03(A)(2), Stubbs knowingly
prepared the cocaine to sell it. For trafficking under R.C. 2925.03(A)(2), Stubbs
knowingly sold cocaine to the CI. The former was necessarily committed before the
latter. State v. Bradley, 2015-Ohio-5421, 55 N.E.3d 580, ¶ 40 (8th Dist.) (“Because
Bradley’s act of selling cocaine to the CI during the buy-bust operation was
committed separately from the ‘preparation’ or ‘transportation’ of cocaine and
heroin with the intent to sell, [trafficking under R.C. 2925.03(A)(1)] does not merge
with the remaining trafficking counts [under R.C. 2925.03(A)(2)].”). Therefore,
Stubbs’s trafficking convictions in Counts 1 and 2 do not merge for purposes of
sentencing.
After review, we conclude that it was plain error for the trial court to
sentence Stubbs on possession and the trafficking offenses. The trial court should
have merged possession with one of the trafficking offenses. We further find that
Stubbs was prejudiced by the trial court’s error because although he received
concurrent sentences for the offenses, he was still convicted of three offenses. State
v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 12 (“[A]
‘conviction’ consists of a guilty verdict and the imposition of a sentence or penalty.”
(Emphasis sic.)).
Accordingly, we sustain Stubbs’s fifth assignment of error in part and
reverse it in part. We remand for resentencing for the state to elect which offense
(possession or trafficking under either subsection) to pursue at sentencing.
This cause is affirmed in part, reversed in part, and remanded to the
lower court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________________
MICHELLE J. SHEEHAN, JUDGE
EILEEN A. GALLAGHER, P.J., and
FRANK DANIEL CELEBREZZE, III, J., CONCUR