State v. Williams

[Cite as State v. Williams, 2012-Ohio-4693.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 11CA3408
:
vs. : Released: September 25, 2012
:
MAURICE H. WILLIAMS, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
APPEARANCES:
Gene Meadows, Portsmouth, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecutor, and Pat Apel, Assistant Scioto County
Prosecutor, Portsmouth, Ohio, for Appellee.
McFarland, J.:
{¶1} Appellant, Maurice H. Williams, appeals his conviction in the Scioto
County Court of Common Pleas after a jury found him guilty of trafficking in
drugs, possession of drugs, possession of criminal tools, possession of marihuana,
and conspiracy to traffic in drugs. The charges included major drug offender
specifications and within the vicinity of a school specifications. Williams raises
five assignments of error, arguing 1) there was insufficient evidence to convict him
and his convictions were against the manifest weight of the evidence; 2) the trial
court erred in overruling his motion to suppress the evidence; 3) the trial court
erred by denying him the ability to call his co-defendant to the stand; 4) the verdict
Scioto App. No. 11CA3408 2
forms do not support his convictions; and 5) the trial court erred in convicting and
sentencing him.
{¶2} Having reviewed the record, we have identified another sentencing
issue, which we raise sua sponte, related to the trial court’s characterization of the
sentence imposed in connection with Appellant’s status as a major drug offender.
Specifically, the trial court incorrectly stated a portion of Williams’ sentence was
mandatory, when it was not. Accordingly, we sua sponte notice plain error with
regard to this sentencing error and hereby reverse this portion of the sentence and
remand the case for proceedings consistent with this opinion.
Next, we find there was substantial evidence upon which the jury could have
found Williams was guilty of the charged offenses beyond a reasonable doubt, and
his convictions are not against the manifest weight, nor was the evidence
insufficient. However, with respect to Williams’ argument that the trial court erred
when it entered a judgment of conviction on count 10, the conspiracy charge,
because the trial court merged count 10 with counts 1 and 2, Williams was not
actually sentenced on that count and, therefore, no conviction resulted on that
count. Thus, we overrule Williams’ fourth assignment of error.
{¶3} Since Williams failed to demonstrate he had standing to challenge the
search of the residence, we conclude that the trial court correctly overruled his
motion to suppress the evidence and we overrule his second assignment of error.
Scioto App. No. 11CA3408 3
{¶4} The trial court properly refused to call Williams’ co-defendant to testify
because he intended to only assert his Fifth Amendment right against self-
incrimination. Thus, we overrule Williams’ third assignment of error.
{¶5} Regarding the verdict forms, we find there were several deficiencies
that require us to vacate Williams’ convictions for multiple counts and remand the
case to the trial court to enter a judgment of conviction for the correct level of the
offenses and sentence Williams accordingly. Thus, we affirm Williams’ fourth
assignment of error in part, and overrule it in part.
{¶6} Finally, we find the trial court did not err in sentencing Williams and
overrule his fifth assignment of error.
{¶7} Therefore, we affirm in part and reverse in part the trial court’s
judgment and remand the case for proceedings consistent with this opinion.
FACTS
{¶8} On October 25, 2010, Officer Steve Timberlake was unloading items
from his vehicle when an unknown male approached him. The male knew
Timberlake by name and told him there were men from Detroit selling drugs out of
Katherine Lansing’s residence at 616 Sixth Street in Portsmouth, Ohio. The next
morning, Timberlake found an anonymous note on his vehicle’s windshield,
addressed to him, indicating there were “D-boys” at the house on Sixth Street, and
illegal activity was occurring at another location in Portsmouth.
Scioto App. No. 11CA3408 4
{¶9} Timberlake viewed the Scioto County Court of Common Pleas’
website and determined Lansing was on probation. Timberlake contacted Nick
Ferrara, the court’s chief probation officer, and discussed the tip about Lansing.
Ferrara noted Lansing’s listed address was not on Sixth Street, but she had not
been reporting to her probation officer and had an outstanding warrant for her
arrest. Ferrara determined the 616 Sixth Street address was incorrect, as the
probation department was located on Sixth Street, and 616 would have been an
alleyway.
{¶10} As a result of this conversation, Timberlake began checking the police
department’s records for mention of Lansing. One month earlier, on September
22, 2010, a caller telephoned the police to report a burglary at 518 Sixth Street,
Portsmouth, Ohio. The report identified the caller as “Catherine Lansing,” the
resident.
{¶11} Based upon this new information that placed Lansing at 518 Sixth
Street only one month earlier, Ferrara decided it would be prudent to visit the
residence and arrest Lansing. Because of Timberlake’s tip that there may be as
many as five additional persons present, who were allegedly selling drugs, Ferrara
requested Timberlake and other officers from the Portsmouth Police Department
assist with the home search for safety reasons. Timberlake and two other officers
accompanied Ferrara and two probation officers to the residence.
Scioto App. No. 11CA3408 5
{¶12} Upon arriving at the residence, part of the group went to the front
door, while the others covered the rear. One of the probation officers at the front
door knocked and announced his presence. The officers heard scuffling inside, but
no verbal response, and no one answered the door. The officers at the back then
noticed one to two males approaching the second story window in a manner that
indicated they were attempting to exit the window. The officers shouted this
information to the others at the front of the house. At that point, Ferrara ordered
one of the probation officers to breach the door.
{¶13} Upon entering the residence, the officers saw Williams descending the
stairs. They escorted him to the living room without incident. Law enforcement
found Daniel Pippen in the upstairs restroom and Tyrone Dixon, Evan Howard,
and Eric Durr in a small upstairs bedroom. The bedroom had a dresser and a
mattress in it, along with a pile of money on the floor. The money totaled $3,090.
{¶14} Probation officers were unable to locate Lansing within the house, but
they did find mail addressed to her at the residence, as well as a photo of her on the
refrigerator. With evidence the house was Lansing’s residence, the officers
conducted a search for contraband.
{¶15} Law enforcement found a total of $16,803, 1,824 oxycodone pills,
cocaine, heroin, marihuana, and two digital scales. Some of the pills and money
were in a sock underneath a cushion on the couch. Other drugs and money were in
Scioto App. No. 11CA3408 6
a plastic Walmart bag by the door to the basement. Most of the marihuana was
behind the dresser in the upstairs bedroom. There was additional money under the
mattress in the same room. There was even money inside of a woman’s shoe.
Officers found the digital scales in the kitchen. After the search, Tyrone Dixon
attempted to claim all of the contraband as his, but when officers asked him asked
what was his, Dixon was unable to identify all of the contraband the officers found.
{¶16} The grand jury indicted Williams and the others within the house for
trafficking in drugs, possession of drugs, trafficking in cocaine, possession of
cocaine, possession of criminal tools, possession of marihuana, and conspiracy to
traffic in drugs, many of which included aggravating specifications. During the
jury trial, the trial court dismissed the counts relating to the cocaine, and the jury
convicted Williams of the remaining counts and found the money recovered was
subject to forfeiture. The verdict forms read:
Count 1: “Trafficking in Drugs/Oxycodone/Vicinity of a School/Major
Drug Offender.” The jury found the amount equaled or
exceeded 100 times the bulk amount and was within 1,000 feet
of a school.
Count 2: “Possession of Drugs/Major Drug Offender.” The jury found
the amount equaled or exceeded 100 times the bulk amount.
Scioto App. No. 11CA3408 7
Count 3: “Trafficking in Drugs/Heroin/Within the Vicinity of a School.”
The jury found the amount equaled or exceeded the bulk
amount, but was less than five times the bulk amount, and was
within 1,000 feet of a school.
Count 4: “Possession of Drugs/Heroin.” The jury found the amount
equaled or exceeded one gram, but was less than five grams.
Count 7: “Trafficking in Drugs/Marijuana/Within the Vicinity of a
School.” The jury found the amount was less than 200 grams
and was within 1,000 feet of a school.
Count 8: “Possession of Criminal Tools.” There were no findings
associated with this count.
Count 9: “Possession of Marijuana.” The jury found the amount was less
than the bulk amount.
Count 10: “Conspiracy to Traffic in Drugs, F2.”
{¶17} The trial court sentenced Williams to 27 years in prison. Williams
now appeals.
ASSIGNMENTS OF ERROR
I. “THE EVIDENCE PRESENTED AT TRIAL IS INSUFFICIENT TO
SUPPORT DEFENDANT’S [CONVICTION], WHICH
Scioto App. No. 11CA3408 8
CONVICTION IS MANIFESTLY AGAINST THE WEIGHT OF
THE EVIDENCE AND MUST BE REVERSED.”
II. “THE TRIAL COURT ERRED IN DENYING DEFENDANT-
APPELLANT’S MOTION TO SUPPRESS AND RENEWED
MOTION TO SUPPRESS EVIDENCE.”
III. “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT WHEN THE TRIAL COURT REFUSED TO
ALLOW THE DEFENDANT-APPELLANT [TO] CALL THE CO-
DEFENDANT AS A WITNESS AT TRIAL AND REQUIRE THE
DEFENDANT-APPELLANT TAKE THE WITNESS STAND AND
ASSERT HIS FIFTH AMENDMENT RIGHTS ON THE WITNESS
STAND.”
IV. “THE VERDICT FORMS DO NOT SUPPORT DEFENDANT’S
CONVICTIONS.”
V. “THE TRIAL COURT ERRED IN CONVICTING AND
SENTENCING DEFENDANT.”
LEGAL ANALYSIS
{¶18} After reviewing the record, we have noted an initial threshold matter
that must be addressed related to the trial court’s characterization of Williams’
sentence imposed as a result of his major drug offender specification. As will be
Scioto App. No. 11CA3408 9
more fully discussed, infra, when sentencing Williams, the trial court incorrectly
stated that this portion of Williams’ sentence was mandatory, when it was not. As
such, we have decided to sua sponte invoke the “plain error” rule. Crim.R. 52(B)
states that although a defendant may have failed to raise a timely objection to an
error affecting a substantial right, courts may notice the error.
{¶19} For a reviewing court to find plain error: 1.) there must be an error, i.e
., “a deviation from a legal rule”; 2.) the error must be plain, i.e., “an ‘obvious'
defect in the trial proceedings”; and 3.) the error must have affected “substantial
rights,” i.e., it must have affected the outcome of the proceedings. State v. Barnes,
94 Ohio St. 3d 21, 27, 759 N.E.2d 1240 (2002). Furthermore, the Supreme Court of
Ohio has admonished courts that notice of plain error under Crim.R. 52(B) is to be
taken “ ‘with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.’ ” Id., quoting State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶20} When reviewing felony sentences, this Court follows the two-step
approach the Supreme Court of Ohio outlined in State v. Kalish, 120 Ohio St. 3d
23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶ 4. See State v. Welch, 4th Dist. No.
08CA29, 2009-Ohio-2655, at ¶ 6. “First, [we] must examine the sentencing
court’s compliance with all applicable rules and statutes in imposing the sentence
to determine whether the sentence is clearly and convincingly contrary to law. If
Scioto App. No. 11CA3408 10
this first prong is satisfied, [that is, if the sentence complies with the law,] the trial
court’s decision shall be reviewed under an abuse-of-discretion standard.” Kalish
at ¶ 4.
{¶21} Here, the jury convicted Williams of aggravated trafficking in drugs,
with additional aggravating factors that the amount of oxycodone involved was
more than 100 times the bulk amount, and the crime occurred within the vicinity of
a school. Aggravated trafficking in drugs is proscribed by R.C. 2925.03(C)(1).
R.C. 2925.03(C)(1)(f) provided, “[i]f the amount of the drug involved equals or
exceeds one hundred times the bulk amount and regardless of whether the offense
was committed in the vicinity of a school or in the vicinity of a juvenile,
aggravated trafficking in drugs is a felony of the first degree, the offender is a
major drug offender, and the court shall impose as a mandatory prison term the
maximum prison term prescribed for a felony of the first degree and may impose
an additional prison term prescribed for a major drug offender under division
(D)(3)(b) of section 2929.14 of the Revised Code.” The jury found the amount of
the drug exceeded 100 times the bulk amount.
{¶22} Thus, Williams was a “major drug offender” under R.C.
2925.03(C)(1)(f) and subject to a mandatory prison term of ten years for
aggravated trafficking in drugs. The trial court also sentenced Williams to an
Scioto App. No. 11CA3408 11
additional prison term of ten years for the major drug offender specification,
stating on the record that this additional ten-year term was mandatory.
{¶23} R.C. 2929.14(D)(3)(b) provided, “[t]he court imposing a prison term
on an offender under division (D)(3)(a) of this section may impose an additional
prison term of one, two, three, four, five, six, seven, eight, nine, or ten years * *
*.”1 That is, the trial court was permitted to impose an additional prison term of
ten years for the major drug offender specification, but the statutory language did
not make the additional prison term mandatory. Thus, it was erroneous for the trial
court to label the prison term for the major drug offender specification as
“mandatory.”
{¶24} The distinction between mandatory and nonmandatory prison terms is
important when determining whether a court may grant an offender judicial
release. R.C. 2929.20(A)(1)(a) provided only eligible offenders could apply for
judicial release, and “‘eligible offender’ means any person serving a stated prison
term of ten years or less * * *.” As Williams’ aggregate sentence was 27 years, he
was not eligible for judicial release because his aggregate sentence was greater
than ten years.
{¶25} However, Revised Code Section 2929.20 has since been amended and
Williams will eventually be eligible for judicial release, even with a prison
1
R.C. 2929.14 has since been amended.
Scioto App. No. 11CA3408 12
sentence of 27 years. The General Assembly amended R.C. 2929.20(A)(1)(a) to
read, “Except as provided in division (A)(1)(b) of this section, ‘eligible offender’
means any person who, on or after April 7, 2009, is serving a stated prison term
that includes one or more nonmandatory prison terms.” As 17 years of Williams’
27-year sentence are nonmandatory, Williams is an “eligible offender.”
Additionally, the newly added R.C. 2929.20(C)(5) provides, “[i]f the aggregated
nonmandatory prison term or terms is more than ten years, the eligible offender
may file the motion not earlier than the later of the date on which the offender has
served one-half of the offender’s stated prison term or the date specified in division
(C)(4) of this section.”
{¶26} Accordingly, because the trial court incorrectly stated the ten-year
prison term for Williams’ major drug offender specification was mandatory, we
conclude that this portion of the sentence was contrary to law and an abuse of
discretion under Kalish, supra, and also constitutes plain error. Accordingly, we
hereby reverse this portion of the sentence and remand the case for proceedings
consistent with this opinion.
ASSIGNMENT OF ERROR I
A. Standard of Review
{¶27} In his first assignment of error, Williams argues his convictions were
against the manifest weight of the evidence and based upon insufficient evidence.
Scioto App. No. 11CA3408 13
We disagree. Further, with respect to Pippen’s claim that he was convicted of
conspiracy to traffic in drugs based upon insufficient evidence against the weight
of the evidence, because we find Pippen was not actually convicted on the
conspiracy count, we reject this argument also.
{¶28} “When an appellate court concludes that the weight of the evidence
supports a defendant’s conviction, this conclusion necessarily includes a finding
that sufficient evidence supports the conviction. Thus, a determination that [a]
conviction is supported by the weight of the evidence will also be dispositive of the
issue of sufficiency. Therefore, we first consider whether [Appellant’s] conviction
[is] against the manifest weight of the evidence.” (Internal quotations, citations,
and footnote omitted.) State v. Leslie, 4th Dist. Nos. 10CA17, 10CA18, 2011-
Ohio-2727, at ¶ 15. See, also, State v. Bostwick, 4th Dist. No. 10CA3382, 2011-
Ohio-3671, at ¶ 10; State v. Kulchar, 4th Dist. No. 10CA6, 2011-Ohio-5144, at ¶
31 (per curiam).
{¶29} “In determining whether a criminal conviction is against the manifest
weight of the evidence, an appellate court must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine whether, in resolving conflicts in the evidence, the trier of fact clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed.” State v. Brown, 4th Dist. No. 09CA3, 2009-Ohio-5390, at ¶ 24,
Scioto App. No. 11CA3408 14
citing State v. Thompkins (1997), 78 Ohio St. 3d 380, 387, 678 N.E.2d 541. A
reviewing court “may not reverse a conviction when there is substantial evidence
upon which the [trier of fact] could reasonably conclude that all elements of the
offense have been proven beyond a reasonable doubt.” State v. Johnson (1991), 58
Ohio St. 3d 40, 42, 567 N.E.2d 266, citing State v. Eskridge (1988), 38 Ohio St. 3d
56, 526 N.E.2d 304, at paragraph two of the syllabus.
{¶30} We must still remember that the weight to be given evidence and the
credibility to be afforded testimony are issues to be determined by the trier of fact.
State v. Frazier (1995), 73 Ohio St. 3d 323, 339, 1995-Ohio-235, 652 N.E.2d 1000,
citing State v. Grant (1993), 67 Ohio St. 3d 465, 477, 1993-Ohio-171, 620 N.E.2d
50. The trier of fact “is best able to view the witnesses and observe their
demeanor, gestures, and voice inflections, and use these observations in weighing
the credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland (1984),
10 Ohio St. 3d 77, 80, 461 N.E.2d 1273.
B. Legal Analysis
1. Trafficking Counts
“(A) No person shall knowingly do any of the following:
“* * *
“(2) Prepare for shipment, ship, transport, deliver, prepare for distribution,
or distribute a controlled substance, when the offender knows or has reasonable
Scioto App. No. 11CA3408 15
cause to believe that the controlled substance is intended for sale or resale by the
offender or another person.
“* * *
“(C) Whoever violates division (A) of this section is guilty of one of the
following:
“(1) If the drug involved in the violation is any compound, mixture,
preparation, or substance included in schedule I or schedule II, with the exception
of marihuana, cocaine, L.S.D., heroin, and hashish, whoever violates division (A)
of this section is guilty of aggravated trafficking in drugs. The penalty for the
offense shall be determined as follows:
“* * *
“(f) If the amount of the drug involved equals or exceeds one hundred times
the bulk amount and regardless of whether the offense was committed in the
vicinity of a school * * *, aggravated trafficking in drugs is a felony of the first
degree, the offender is a major drug offender, and the court shall impose as a
mandatory prison term the maximum prison term prescribed for a felony of the
first degree.
“* * *
“(3) If the drug involved in the violation is marihuana or a compound,
mixture, preparation, or substance containing marihuana other than hashish,
Scioto App. No. 11CA3408 16
whoever violates division (A) of this section is guilty of trafficking in marihuana.
The penalty for the offense shall be determined as follows:
“* * *
“(b) Except as otherwise provided in division (C)(3)(c), (d), (e), (f), (g), or
(h) of this section, if the offense was committed in the vicinity of a school or in the
vicinity of a juvenile, trafficking in marihuana is a felony of the fourth degree, and
division (B) of section 2929.13 of the Revised Code applies in determining
whether to impose a prison term on the offender.
“* * *
“(6) If the drug involved in the violation is heroin or a compound, mixture,
preparation, or substance containing heroin, whoever violates division (A) of this
section is guilty of trafficking in heroin. The penalty for the offense shall be
determined as follows:
“* * *
“(b) Except as otherwise provided in division (C)(6)(c), (d), (e), (f), or (g)
of this section, if the offense was committed in the vicinity of a school or in the
vicinity of a juvenile, trafficking in heroin is a felony of the fourth degree, and
division (C) of section 2929.13 of the Revised Code applies in determining
whether to impose a prison term on the offender.”
Scioto App. No. 11CA3408 17
a. Aggravated Trafficking in Drugs2
{¶31} Here, there was substantial evidence upon which the jury could
reasonably conclude the state had proven all elements of aggravated trafficking in
drugs beyond a reasonable doubt.
{¶32} Timberlake testified about the various controlled substances law
enforcement recovered from 518 Sixth Street. Williams was present in the house
when law enforcement recovered these.
{¶33} Megan Snyder, a forensic chemist, testified at great length about the
chemical analyses she performed on each substance, identifying whether it was a
controlled substance, and noting the amount of each substance. Snyder testified
there were 1,824 pills that contained oxycodone (oxycodone hydrochloride). She
also testified, based upon the maximum daily dosage of 90 milligrams for
2
We note the names of the offenses used in several of the verdict forms are incorrect, though this did not
prejudice Williams. For example, Count 1 was entitled “Trafficking in Drugs/Oxycodone/Vicinity of a
School/Major Drug Offender,” but should have been entitled “aggravated trafficking in drugs” and specified the
controlled substance involved was oxycodone. See R.C. 2925.03(C)(1). The offenses should have been titled
“aggravated trafficking in drugs” and “aggravated possession of drugs” (for the oxycodone), “trafficking in heroin”
and “possession of heroin,” “trafficking in marijuana” and “possession of marihuana.” The statutory scheme of R.C.
2925.03 and 2925.11 provides for separate offenses, each with distinct aggravating factors and penalties, depending
upon the controlled substance involved. We caution against the vernacular use of the phrases “trafficking in drugs”
and “possession of drugs,” as the state and the court did in this case, because these vernacular phrases are actually
specific crimes involving specific controlled substances. See R.C. 2925.03(C)(2) and 2925.11(C)(2). Instead,
parties should employ the specific statutory name of the offense based upon the controlled substance involved.
Scioto App. No. 11CA3408 18
oxycodone and oxycodone’s “bulk amount” being five times the maximum daily
dosage, the pills were 121.6 times the bulk amount of oxycodone.
{¶34} Regarding the proximity of 518 Sixth Street to a school, Melinda
Davis testified the residence was within 1000’ of a school at which she was the
principal.
{¶35} Again, there were digital scales in plain view. There was $3,090 on
the floor of the upstairs bedroom. In total, there was $16,803 in cash within the
house, though only one of five defendants was ostensibly employed. In addition to
the 1,824 oxycodone pills, there was heroin, cocaine, and marihuana recovered
from the residence. Given the sheer quantity of the oxycodone recovered, and the
other evidence, it was reasonable for the jury to conclude Williams was involved in
preparing for shipment, shipping, transporting, delivering, preparing for
distribution, or distributing the oxycodone. It was also reasonable for the jury to
conclude Williams intended to sell or resell the oxycodone, or he knew or had
reasonable cause to believe another person intended to sell or resell the oxycodone.
{¶36} Although the case against Williams and his co-defendants is based
entirely upon circumstantial evidence, circumstantial evidence is, by itself, a
sufficient basis for a conviction. State v. Bostwick, 4th Dist. No. 10CA3382, 2011-
Ohio-3671, at ¶ 17, quoting State v. Smith, 4th Dist. No. 09CA29, 2010-Ohio-
Scioto App. No. 11CA3408 19
4507, at ¶ 44, quoting State v. Franklin (1991), 62 Ohio St. 3d 118, 124, 580
N.E.2d 1.
{¶37} Addressing Williams’ contention that the state failed to prove
possession, even constructive possession, we disagree. Possession may be actual
or constructive. State v. Butler (1989), 42 Ohio St. 3d 174, 176, 538 N.E.2d 98;
State v. Fry, 4th Dist. No. 03CA26, 2004-Ohio-5747, ¶ 39. “Actual possession
exists when the circumstances indicate that an individual has or had an item within
his immediate physical possession. Constructive possession exists when an
individual is able to exercise dominion or control of an item, even if the individual
does not have the item within his immediate physical possession.” Fry at ¶ 39,
citing State v. Hankerson (1982), 70 Ohio St. 2d 87, 434 N.E.2d 1362, syllabus, and
State v. Wolery (1976) 46 Ohio St. 2d 316, 329, 348 N.E.2d 351.
{¶38} This court has held that, “[f]or constructive possession to exist, ‘[i]t
must also be shown that the person was conscious of the presence of the object.’”
State v. Harrington, 4th Dist. No. 05CA3038, 2006-Ohio-4388, at ¶ 15, citing
Hankerson at 91. Further, “two or more persons may have joint constructive
possession of a particular item.” State v. Cooper, 3d Dist. No. 9-06-49, 2007-
Ohio-4937, at ¶ 25, citing State v. Mann (1993), 93 Ohio App. 3d 301, 308, 638
N.E.2d 585; State v. Riggs (Sept. 13, 1999), 4th Dist. No. 98CA39, 1999 WL
727952. “[T]he crucial issue is not whether the accused had actual physical
Scioto App. No. 11CA3408 20
contact with the article concerned, but whether the accused was capable of
exercising dominion or control over it.” State v. Reed, 2d. Dist. No. 2002-CA-30,
2003-Ohio-5413, at ¶ 19.
{¶39} Williams’ argument is his mere proximity to various controlled
substances does not conclusively establish he possessed them. R.C. 2925.01(K)
provides, “‘[p]ossess’ or ‘possession’ means having control over a thing or
substance, but may not be inferred solely from mere access to the thing or
substance through ownership or occupation of the premises upon which the thing
or substance is found.” That is, “a defendant’s mere presence in an area where
drugs are located does not conclusively establish constructive possession.
However, a defendant’s proximity to drugs may constitute some evidence of
constructive possession. Mere presence in the vicinity of illegal drugs, coupled
with another factor or factors probative of dominion or control over the
contraband, may establish constructive possession.” (Internal citations omitted,
emphasis added.) State v. Riggs (Sept. 13, 1999), 4th Dist. No. 98CA39.
{¶40} In State v. Harrington, the defendant’s proximity to a quantity of
cocaine, coupled with his immediate denial of any wrongdoing and false
statements, permitted a jury to infer the defendant knew the cocaine was there.
Harrington at ¶ 18, 24. We found this evidence sufficient to establish the
defendant knew of the cocaine and he had the ability to exercise control over it,
Scioto App. No. 11CA3408 21
demonstrating constructive possession. Id. at ¶ 24. We also found the defendant’s
convictions for possession and trafficking in cocaine were not against the manifest
weight of the evidence. Id. at ¶ 26.
{¶41} In State v. New, 4th Dist. No. 08CA9, 2009-Ohio-2632, the state
presented evidence of recorded telephone conversations between the defendant and
her boyfriend that indicated she knew there were drugs in the house. During a
phone call, the defendant discussed with her boyfriend specific items in the home
the police had recovered, such as a coffee can with a false bottom that contained
cocaine, a plate with a razor blade that had cocaine residue on it, and pictures of
the defendant, her boyfriend, and a third party holding large sums of cash. New at
¶ 16, 17. Given the defendant’s presence in the house, coupled with her statements
about specific items related to controlled substances, she knew where the cocaine
was kept in the residence, and a finding that she constructively possessed the
cocaine was not against the manifest weight of the evidence. Id. at ¶ 18.
{¶42} Likewise, in State v. Riggs, we found the defendant’s proximity to
controlled substances in the passenger compartment of a vehicle, coupled with the
vast amount of controlled substances and paraphernalia within the vehicle was
sufficient to establish constructive possession. Law enforcement recovered
cocaine in a bag behind the passenger’s seat; a cocaine straw and a plastic
container with marihuana residue beside the defendant’s seat; a mirror with
Scioto App. No. 11CA3408 22
cocaine residue under the passenger’s seat; numerous marihuana roaches and
marihuana joints throughout the vehicle, many of which were in the defendant’s
plain view. Id. Thus, the defendant’s proximity, coupled with the vast amount of
drugs, some of which were in plain view, permitted the jury to find he knowingly
possessed the drugs. Id.
{¶43} The present case is akin to Riggs. “The presence of such a vast
amount of drug evidence in the [house] supports an inference that [Williams] knew
about the presence of the drugs and that he, along with his [co-defendants],
exercised control over each of the items found.” Riggs, citing State v. Soto, 8th
Dist. No. 57301, 1990 WL145651 (Oct. 4, 1990). Here, there were drugs scattered
throughout the entire house: 1,824 oxycodone pills, over 100 grams of marihuana,
heroin, cocaine, and traces of codeine and morphine. There were digital scales in
plain view in the kitchen. There was over $16,000 cash in a house where four of
the five occupants were unemployed. Considering all of this evidence together, the
jury could properly infer Williams knew there were controlled substances in the
house and he was capable of exercising dominion or control over them,
establishing his constructive possession of the controlled substances. Thus, the
jury’s findings that Williams knowingly possessed the various controlled
substances were not against the manifest weight of the evidence.
Scioto App. No. 11CA3408 23
{¶44} Considering the totality of the evidence, there was substantial
evidence upon which the jury could reasonably conclude the state had proven all
elements of aggravated trafficking in drugs beyond a reasonable doubt. We cannot
say the jury clearly lost its way and created a manifest miscarriage of justice.
Thus, we affirm Williams’ conviction for aggravated trafficking in drugs.
b. Trafficking in Marihuana
{¶45} Timberlake testified law enforcement had recovered a bag of
marihuana, which contained smaller bags of marihuana. There were also small
amounts of marihuana in other containers. Snyder testified the chemical analyses
revealed the substance was indeed marihuana and there was 113.3 grams of
marihuana total. Again, Davis’ testimony was the house was within 1,000 feet of a
school.
{¶46} No one testified the marihuana was for personal use. Give the
quantity of the marihuana, the fact that it was stored in smaller packages, and its
presence of marihuana residue on the digital scale, it was reasonable to believe
Williams was trafficking the marihuana.
{¶47} Considering the evidence as a whole, there was substantial evidence
upon which the jury could reasonably conclude the state had proven all elements of
trafficking in marihuana beyond a reasonable doubt. We cannot say the jury
Scioto App. No. 11CA3408 24
clearly lost its way and created a manifest miscarriage of justice. Thus, we affirm
Williams’ conviction for trafficking in marihuana.3
c. Trafficking in Heroin
{¶48} Similarly, Timberlake testified law enforcement had recovered 2.8
grams of heroin from the residence. Snyder confirmed through chemical analysis
the substance was heroin. Snyder also testified one of the digital scales had trace
amounts of heroin on it. Again, according to Davis, the house was within 1,000
feet of a school.
{¶49} As with the marihuana, no one testified the heroin was for personal
use. Given the heroin residue on the digital scale, it was reasonable to believe
Williams was trafficking the heroin.
{¶50} Considering the totality of the evidence, there was substantial
evidence upon which the jury could reasonably conclude the state had proven all
elements of trafficking in heroin beyond a reasonable doubt. We cannot say the
jury clearly lost its way and created a manifest miscarriage of justice. Thus, we
affirm Williams’ conviction for trafficking in heroin.4
3
The jury’s finding that the marihuana was “less than bulk amount” is inconsequential because “less than
bulk amount” is not an aggravating factor; in fact the statute does not refer to a bulk amount of marihuana.
4
We address the finding that the heroin was “Equal to or greater than bulk amount but less than five (5)
times bulk amount,” infra.
Scioto App. No. 11CA3408 25
2. Possession of Controlled Substances
R.C. 2925.11 provides:
“(A) No person shall knowingly obtain, possess, or use a controlled
substance.
“* * *
“(C) Whoever violates division (A) of this section is guilty of one of the
following:
“* * *
“(1) If 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, and hashish, whoever violates division (A) of
this section is guilty of aggravated possession of drugs. The penalty for the offense
shall be determined as follows:
“(e) If the amount of the drug involved equals or exceeds one hundred times
the bulk amount, aggravated possession of drugs is a felony of the first degree, the
offender is a major drug offender, and the court shall impose as a mandatory prison
term the maximum prison term prescribed for a felony of the first degree.
“* * *
“(3) If the drug involved in the violation is marihuana or a compound,
mixture, preparation, or substance containing marihuana other than hashish,
Scioto App. No. 11CA3408 26
whoever violates division (A) of this section is guilty of possession of marihuana.
The penalty for the offense shall be determined as follows:
“(a) Except as otherwise provided in division (C)(3)(b), (c), (d), (e), (f), or
(g) of this section, possession of marihuana is a minor misdemeanor.”
“* * *
“(6) If the drug involved in the violation is heroin or a compound, mixture,
preparation, or substance containing heroin, whoever violates division (A) of this
section is guilty of possession of heroin. The penalty for the offense shall be
determined as follows:
“* * *
“(b) If the amount of the drug involved equals or exceeds ten unit doses but
is less than fifty unit doses or equals or exceeds one gram but is less than five
grams, possession of heroin is a felony of the fourth degree, and division (C) of
section 2929.13 of the Revised Code applies in determining whether to impose a
prison term on the offender.”
{¶70} When the jury found Williams trafficked in the controlled substances
(oxycodone, heroin, and marihuana) under R.C. 2925.03(A)(2), it implicitly found
he possessed the substances, too. For the same reasons Williams’ convictions for
trafficking were not against the manifest weight of the evidence, we find his
convictions for possession of the controlled substances are not against the manifest
Scioto App. No. 11CA3408 27
weight of the evidence either. Thus, we affirm Williams’ convictions for
aggravated possession of drugs, possession of marihuana, and possession of
heroin.5
3. Possessing Criminal Tools
{¶51} R.C. 2923.24(A) provides, “No person shall possess or have under the
person’s control any substance, device, instrument, or article, with purpose to use it
criminally.” Whoever violates that section is guilty of possessing criminal tools.
R.C. 2923.24(C).
{¶52} As with Williams’ convictions for possession of controlled
substances, there was substantial evidence upon which a jury could find Williams
possessed the digital scales found in the kitchen. The fact that the scales had
residue from marihuana, heroin, codeine, and morphine on them, coupled with the
vast amount of drugs recovered from the house, permitted the jury to infer
Williams had a purpose to use the scales criminally: to traffic the controlled
substances. Thus, we affirm Williams’ conviction for possessing criminal tools.
4. Conspiracy to Traffic in Drugs
R.C. 2923.01 provides:
5
Again, we discuss the errors with the verdict forms, infra.
Scioto App. No. 11CA3408 28
“(A) No person, with purpose to commit or to promote or facilitate the
commission of * * * a felony drug trafficking, manufacturing, processing, or
possession offense * * * shall do either of the following:
“(1) With another person or persons, plan or aid in planning the commission
of any of the specified offenses;
“(2) Agree with another person or persons that one or more of them will
engage in conduct that facilitates the commission of any of the specified offenses.
“* * *
“(M) As used in this section:
“(1) ‘Felony drug trafficking, manufacturing, processing, or possession
offense’ means any of the following that is a felony:
“(a) A violation of section 2925.03 * * * of the Revised Code;
“(b) A violation of section 2925.11 of the Revised Code that is not a minor
drug possession offense.”
{¶53} R.C. 2923.01(G) provides, “When a person is convicted of
committing * * * [a] specific offense, the person shall not be convicted of
conspiracy involving the same offense.” As such, because Williams was convicted
on the principle trafficking offense, he could not be convicted of conspiracy
involving the same offense. Contrary to Williams’ argument that he was convicted
Scioto App. No. 11CA3408 29
of conspiracy to traffic in drugs, based upon the following, we conclude that
Williams was not actually convicted on the conspiracy count.
{¶54} Here, the record reflects that although the jury did return a finding of
guilt as to the conspiracy to traffic in drugs count, count 10, the trial court “ordered
that count 10 merge with Count 1 and Count 2.” Thus, despite the jury’s finding
Williams guilty on count 10, the trial court did not impose a sentence for count 10.
“A conviction consists of a finding of guilt and a sentence.” State v. Fields, 1st
Dist. No. C-090648, 2010-Ohio-4114, ¶ 7, citing State v. Henderson, 58 Ohio
St.2d 171, 177-179, 389 N.E.2d 494 (1979); State v. Obstaint, 1st Dist. No. C-
060629, 2007-Ohio-2661, ¶ 24; accord State v. Whitfield, 124 Ohio St. 3d 319,
2010-Ohio-2, 922 N.E.2d 182, ¶ 12. As such, although the jury found Williams
guilty of count 10, the trial court did not impose a sentence for count 10 and as a
result, Williams was not convicted of count 10. Therefore, there is no conspiracy
conviction to vacate.
{¶55} As to the other counts discussed herein, as we have found Williams’
convictions are not against the manifest weight of the evidence, we find there was
also sufficient evidence to convict him of each offense. Accordingly, we overrule
Williams’ first assignment of error.
Scioto App. No. 11CA3408 30
ASSIGNMENT OF ERROR II
A. Standard of Review
{¶56} In his second assignment of error, Williams argues the trial court erred
in overruling his motion to suppress evidence. We disagree.
{¶57} Preliminarily, “[w]here factual issues are involved in determining a
motion, the court shall state its essential findings on the record.” Crim.R. 12(F).
While the trial court made no explicit factual findings when it denied Williams’
motion to suppress, “[t]he extensive record of the suppression hearing is ‘sufficient
to allow full review of the suppression issues.’” State v. Sapp, 105 Ohio St. 3d 104,
822 N.E.2d 1239, 2004-Ohio-7008, at ¶96, quoting State v. Waddy (1992), 63 Ohio
St.3d 424, 443, 588 N.E.2d 819; citing State v. Brewer (1990), 48 Ohio St. 3d 50,
60, 549 N.E.2d 491.
{¶58} Generally, “‘[a]ppellate review of a motion to suppress presents a
mixed question of law and fact. When considering a motion to suppress, the trial
court assumes the role of trier of fact and is therefore in the best position to resolve
factual questions and evaluate the credibility of witnesses.’” State v. Roberts, 110
Ohio St. 3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶100, quoting State v.
Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶8, citing State
v. Mills (1992), 62 Ohio St. 3d 357, 366, 582 N.E.2d 972. “Accordingly, we defer
to the trial court’s findings of fact if they are supported by competent, credible
Scioto App. No. 11CA3408 31
evidence.” State v. Westbrook, 4th Dist. No. 09CA3277, 2010-Ohio-2692, at ¶16,
citing State v. Landrum (2000), 137 Ohio App. 3d 718, 722, 739 N.E.2d 1159.
“Accepting those facts as true, we must independently determine whether the trial
court reached the correct legal conclusion in analyzing the facts of the case.”
Westbrook at ¶16, citing Roberts at ¶100, citing Burnside at ¶8.
B. Legal Analysis
{¶59} After reviewing the record, we conclude that Williams did not
establish he had standing to assert a Fourth Amendment violation. “The rule
followed by courts today with regard to standing is whether the defendant had an
expectation of privacy * * * that society is prepared to recognize as reasonable.
The burden is upon the defendant to prove facts sufficient to establish such an
expectation.” State v. Williams, 73 Ohio St. 3d 153, 166, 652 N.E.2d 721 (1995),
citing Rakas v. Illinois, 439 U.S. 128, 131, 99 S. Ct. 421, 58 L. Ed. 2d 387, at fn. 1
(1978) and State v. Steele, 2 Ohio App. 3d 105, 107, 440 N.E.2d 1353 (8th Dist.
1981). See, also, State v. Corbin, 6th Dist. No. WD-10-013, 2011-Ohio-3491, at ¶
24.
{¶60} Here, although Williams argued that he had standing to challenge the
search of the residence and the items within it, he provided no evidence or
testimony in support of his argument. Williams did not own the residence or state
he lived there. Nor did Williams establish he was an overnight guest who could
Scioto App. No. 11CA3408 32
invoke the aegis of Minnesota v. Olson (1990), 495 U.S. 91, 110 S. Ct. 1684, 109
L. Ed. 2d 85, and claim he had an expectation of privacy within Lansing’s
residence. Consequently, Williams failed to establish he had standing to assert a
Fourth Amendment violation and the trial court was right to deny his motion.
{¶61} Accordingly, we overrule Williams’ second assignment of error.
ASSIGNMENT OF ERROR III
A. Standard of Review
{¶62} In his third assignment of error, Williams argues the trial court erred
when it denied his request to question Tyrone Dixon, a co-defendant, on the
witness stand. Williams believes he should have, at least, been permitted to call
Dixon to the stand so the jury could watch him invoke his Fifth Amendment right
to silence. We disagree.
{¶63} “‘The admission or exclusion of relevant evidence rests within the
sound discretion of the trial court.’” State v. Abdi, 4th Dist. No. 09CA35, at ¶ 62,
quoting State v. Sage (1987), 31 Ohio St. 3d 173, 510 N.E.2d 343, at paragraph two
of the syllabus. “‘The term “abuse of discretion” connotes more than an error of
law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.’” (Citations omitted.) Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St. 2d
151, 157, 404 N.E.2d 144. “Under this highly deferential standard of review, we
Scioto App. No. 11CA3408 33
may not simply substitute our judgment for that of the trial court.” Woody at ¶35,
citing In re Jane Doe I (1991), 57 Ohio St. 3d 135, 137-138, 566 N.E.2d 1181.
“Rather, we are limited to determining whether considering the totality of the
circumstances, the trial court acted unreasonably, arbitrarily or unconscionably.”
Id., citing Briganti v. Briganti (1984), 9 Ohio St. 3d 220, 222, 459 N.E.2d 896,
citing Blakemore, 5 Ohio St. 3d at 218-220.
B. Legal Analysis
{¶64} “[A] trial court may exclude a person from appearing as a witness on
behalf of a criminal defendant at trial if the court determines that the witness will
not offer any testimony, but merely intends to assert the Fifth Amendment
privilege against self-incrimination.” State v. Kirk (1995), 72 Ohio St. 3d 564, 569,
651 N.E.2d 981.
{¶65} Here, the jury was excused from the courtroom when the discussion of
Dixon’s testimony occurred. (Tr. at 794, 798.) Dixon’s counsel indicated Dixon
would be asserting his Fifth Amendment right against self-incrimination. (Tr. at
799.) After the court advised Dixon of his Fifth Amendment right not to testify,
Dixon personally exercised his right to remain silent. (Tr. at 799-800.) The court
then denied Williams’ request to call Dixon as a witness and refused to permit
Scioto App. No. 11CA3408 34
Williams to proffer a letter he alleged Dixon had written that inculpated Dixon and
exculpated Williams.6
{¶66} The record clearly demonstrates had the trial court permitted Williams
to call Dixon to testify, Dixon merely would have invoked his Fifth Amendment
right to silence. Per Kirk, the trial court was justified in excluding Dixon as a
witness because he would not have offered any testimony, but instead merely
asserted his Fifth Amendment privilege against self-incrimination. Accordingly,
the trial court did not err and we overrule Williams’ third assignment of error.
ASSIGNMENT OF ERROR IV
A. Standard of Review
{¶67} In his fourth assignment of error, Williams argues his convictions
should be vacated because they do not contain the degree of the offenses or the
6 The trial court’s denial of Williams’ request to proffer the letter for appellate review was patently
wrong. Prohibiting an evidentiary proffer prohibits this Court from reviewing the trial court’s ruling and interferes
with a party’s ability to maintain an effective appeal. See, State v. Rhodes (1903), 68 Ohio St. 500, 505, 68 N.E. 7
(“When the court sustained objections to such inquiries, no statement was made of what the expected proof would
be, and, as it occurred during the examination in chief, the ruling of the court is not reviewable in the absence of
such statement. The rule requires a proffer of the desired evidence, in order that a reviewing court can determine
whether or not the action of the trial court was prejudicial.”) While the trial court has the discretion to admit certain
evidence, it has no discretion or authority whatsoever to deny a party the right to proffer evidence for appellate
review.
Scioto App. No. 11CA3408 35
statutory sections pertaining to the various crimes. We agree in part, though
vacating Williams’ sentences is not the proper remedy.
R.C. 2945.75 provides:
“(A) When the presence of one or more additional elements makes an
offense one of more serious degree:
***
(2) A guilty verdict shall state either the degree of the offense of which the
offender is found guilty, or that such additional element or elements are present.
Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the
offense charged.”
{¶68} The Supreme Court of Ohio has adopted a plain reading of this
statute. See State v. Pelfrey, 112 Ohio St. 3d 422, 2007-Ohio-256, 860 N.E.2d 735,
at ¶ 14. Moreover, “[a]lthough [an appellant] failed to object to the verdict forms
in the trial court, we have previously noted that a defendant’s failure to ‘raise the
inadequacy of the verdict form’ does not forfeit this argument on appeal.” New at
¶ 24, citing State v. Huckleberry, 4th Dist. No. 07CA3142, 2008-Ohio-1007, ¶ 18,
citing Pelfrey at ¶ 14.
B. Legal Analysis
{¶69} Here, none of the counts listed the degree of the offense, except for
Count 10, Conspiracy to Traffic in Drugs. While the majority of the counts did not
Scioto App. No. 11CA3408 36
list the degree of the offense, they did contain specific findings regarding
aggravating factors. Thus, those counts comply with R.C. 2945.75(A)(2) and
Pelfrey and we affirm the trial court’s judgment as it pertains to Count 1, Count 4,
and Count 7.
{¶70} Regarding the remaining counts, Count 2 did not specify the
controlled substance involved; Count 3, Count 8, and Count 9 did not contain the
degree of the offense or proper findings regarding aggravating factors.
Accordingly, we must sustain Williams’ assignment of error on these counts and
remand the case to the trial court to reduce the degree of those offenses.
{¶71} However, as will be explained in more detail, infra, because counts 2
and 9 were merged with counts 1 and 7, respectively, we conclude Williams was
not actually convicted on these counts. As such, there are no convictions on counts
2 and 9 to vacate. Thus, any error related to the verdict forms for counts 2 and 9 is
harmless. Nevertheless, as set forth above, on remand, the trial court is instructed
to reduce the degree of offense on counts 2 and 9.
1. Count 2: Possession of Drugs
{¶72} “[T]his Court has ruled that when a jury verdict fails to specify the
drug involved, the convictions must be treated as being associated with the least
serious drug for possession/trafficking (usually marijuana).” State v. Jones, 4th
Scioto App. No. 11CA3408 37
Dist. No. 09CA1, 2010-Ohio-865, at fn. 3, citing New at ¶ 26, fn. 3; Huckleberry at
¶ 24.
{¶73} As the verdict form for Count 2 fails to specify the drug possessed, we
must treat it as a finding of guilt regarding possession of the least serious drug,
marihuana. Since there is no “bulk amount” for marihuana, the finding of that
additional element of “Equal [sic] or exceeds one hundred (100) times bulk
amount” is meaningless. See R.C. 2925.01(D)(1) (excluding marihuana from the
definition of “bulk amount”); R.C. 29295.11(C)(3) (delineating the penalties for
possession of marihuana and enhancing the degree of the offense based upon gram
weight, not bulk amount).
{¶74} Consequently, the jury found Williams guilty of possession of
marihuana, which is a minor misdemeanor, not a first degree felony. R.C.
2925.11(C)(3)(a). As such, we sustain Williams’ assignment of error in this
regard. However, as indicated above, because count 2 was merged with count 1,
Williams was not sentenced on count 2. “A conviction consists of a finding of
guilt and a sentence.” State v. Fields, 1st Dist. No. C-090648, 2010-Ohio-4114, ¶
7, citing State v. Henderson, 58 Ohio St. 2d 171, 177-179, 389 N.E.2d 494 (1979);
State v. Obstaint, 1st Dist. No. C-060629, 2007-Ohio-2661, ¶ 24; accord State v.
Whitfield, 124 Ohio St. 3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 12. Because
Williams was not sentenced on count 2, there is no conviction on count 2 to vacate.
Scioto App. No. 11CA3408 38
Thus, any error related to the verdict form is harmless. Nevertheless, because this
matter is already being remanded on several other issues, the trial court is
instructed to reduce the degree of offense on count 2 consistent with this opinion.
2. Count 3: Trafficking in Heroin
{¶75} In count three, the jury made a finding of “Equal to or greater than
bulk amount but less than five (5) times bulk amount” and “Within 1000 feet of a
School.” Yet R.C. 2925.01(D)(1), which defines “bulk amount,” specifically
excludes heroin from that definition. Moreover, R.C. 2925.03(C)(6), the statute
proscribing trafficking in heroin, does not enhance the degree of the offense based
upon “bulk amount.” Rather, R.C. 2925.03(C)(6) enhances the degree of the
offense based upon a finding of the number of unit doses or the gram weight of the
heroin. Thus, the jury’s finding of one to five times the bulk amount of heroin is
meaningless.
{¶76} Consequently, the jury found Williams trafficked in heroin, with the
aggravating factor of having done so within 1,000 feet of a school. Accordingly,
his conviction for trafficking in heroin should be a felony of the fourth degree, not
a felony of the third degree. R.C. 2925.03(C)(6)(b). We sustain Williams’
assignment of error in this regard and vacate his conviction for Count 3.
Scioto App. No. 11CA3408 39
3. Count 8: Possessing Criminal Tools
{¶77} R.C. 2923.24(A) provides, “No person shall possess or have under the
person’s control any substance, device, instrument, or article, with purpose to use it
criminally.” Whoever violates that section is guilty of possessing criminal tools.
R.C. 2923.24(C). Possessing criminal tools is a misdemeanor of the first degree
unless the circumstances indicate the item involved was intended for use in the
commission of a felony; then possessing criminal tools is a felony of the fifth
degree. Id.
{¶78} Here, the jury made no finding of the aggravating factor that the
scales, the criminal tools, were intended for use in the commission of a felony.
Thus, the verdict form was devoid of the level of the offense findings or
aggravating factors and constitutes a finding of guilt of the least degree of the
offense charged: a first degree misdemeanor. We sustain Williams’ assignment of
error in this regard and vacate his conviction for Count 8.
4. Count 9: Possession of Marihuana
{¶79} The verdict form for Count 9 stated the jury had found Williams
guilty of “Count 9 Possession of Marijuana,” and made the specific finding of
“Less than bulk amount.” There is, however, no bulk amount for marihuana. See
R.C. 2925.01(D)(1) (excluding marihuana from the definition of “bulk amount”).
Further, when determining the appropriate penalty for possession of marihuana,
Scioto App. No. 11CA3408 40
R.C. 2925.11(C)(3) refers to the gram weight of the substance involved, not a bulk
amount. Thus, the jury’s finding that Williams was guilty of possession of
marihuana constitutes a finding of the least degree of the offense; a minor
misdemeanor. As such, we sustain Williams’ assignment of error in this regard.
However, as we concluded in our analysis of count 2, because count 9 was merged
with 7, Williams was not sentenced on count 9 and thus, there is no conviction to
vacate. Obstaint, supra, at ¶ 24.
{¶80} Accordingly, we remand the case to the trial court to 1) impose
convictions for the correct level of these offenses as to counts 3 and 8; 2) to reduce
the degree of offenses as to counts 2 and 9, which were merged with counts 1 and
7 for purposes of sentences: and 3) to sentence Williams accordingly.
ASSIGNMENT OF ERROR V
{¶81} In his fifth assignment of error, Williams argues his convictions and
sentences are erroneous. First, he contends all of the trafficking and possession of
controlled substances charges should merge, as the state failed to prove he engaged
in separate conduct for each offense. Second, Williams believes the sentences the
trial court imposed were simply too harsh. We disagree.
A. Merger of Allied Offenses
{¶82} When determining whether multiple offenses should have merged
under R.C. 2941.25, “[o]ur standard of review is de novo.” State v. Buckta (Nov.
Scioto App. No. 11CA3408 41
12, 1996), 4th Dist. No. 96 CA 3. See, also, Coleman v. Davis, 4th Dist. No.
10CA5, 2011-Ohio-506, at ¶ 16 (“We review questions of law de novo.”), quoting
State v. Elkins, 4th Dist. No. 07CA1, 2008-Ohio-674, at ¶ 12, quoting Cuyahoga
Cty. Bd. of Commrs. v. State, 112 Ohio St. 3d 59, 2006-Ohio-6499, 858 N.E.2d
330, at ¶ 23.
R.C. 2941.25 provides:
“(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information may
contain counts for all such offenses, but the defendant may be convicted of only
one.
“(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the same
or similar kind committed separately or with a separate animus as to each, the
indictment or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.”
{¶83} As the Supreme Court explained in State v. Johnson, 128 Ohio St. 3d
153, 2010-Ohio-6314, 942 N.E.2d 1061, under R.C. 2941.25, “the court must
determine prior to sentencing whether the offenses were committed by the same
conduct.” Johnson at ¶ 47. The initial question is whether it is possible to commit
the two offenses with the same conduct. Johnson at ¶ 48. If so, we must then look
Scioto App. No. 11CA3408 42
to the facts of the case and determine whether the two offenses actually were
committed by the same conduct, “i.e., ‘a single act, committed with a single state
of mind.’” Johnson at ¶ 49, quoting State v. Brown, 119 Ohio St. 3d 447, 2008-
Ohio-4569, 895 N.E.2d 149, at ¶ 50. “If the answer to both questions is yes, then
the offenses are allied offenses of similar import and will be merged.” Johnson at
¶ 50.
{¶84} “Conversely, if the court determines that the commission of one
offense will never result in the commission of the other, or if the offenses are
committed separately, or if the defendant has separate animus for each offense,
then, according to R.C. 2941.25(B), the offenses will not merge.” Johnson at ¶ 51.
{¶85} Here, Williams’ various crimes relating to different controlled
substances are of dissimilar import and do no not merge. State v. Jones (1985), 18
Ohio St. 3d 116, 480 N.E.2d 408, discussed the issue of whether a defendant could
be convicted of multiple counts of aggravated vehicular homicide resulting from a
single collision. The relevant inquiry is “whether the legislature intended the
relevant statute[s] to authorize multiple convictions.” Jones at 117. Having
reviewed the legislative intent of R.C. 2925.11, “[t]he Supreme Court of Ohio has
held that the simultaneous possession of different types of controlled substances
can constitute multiple offenses under R.C. 2925.11.” State v. Westbrook, 4th Dist.
No. 09CA3277, 2010-Ohio-2692, at ¶ 42, citing State Delfino (1986), 22 Ohio
Scioto App. No. 11CA3408 43
St.3d 270, 490 N.E.2d 884, at syllabus. The same holds true for trafficking in
multiple controlled substances. Westbrook at ¶ 46.
{¶86} Here, Williams’ convictions for trafficking in oxycodone, heroin, and
marihuana do not merge with one another. Likewise, Williams’ convictions for
possession of controlled substances do not merge with one another. The import of
each offense is dissimilar and does not merge under R.C. 2941.25(A). See R.C.
2941.25(B). Accordingly, we overrule this portion of Williams’ fifth assignment
of error.
B. Length of Sentences
{¶87} In the second portion of his fifth assignment of error, Williams argues
his sentences are too harsh. Specifically, Williams contends the trial court failed to
consider R.C. 2929.14 and, per Blakely v. Washington (2004), 524 U.S. 296, 124
S. Ct. 2531, 159 L. Ed. 2d 403, the jury was required to make specific findings
before the trial court imposed the harshest sentence. We disagree.
{¶88} First, Williams’ contention that the trial court erred by failing to
consider R.C. 2929.14(B) is meritless. The Supreme Court of Ohio held in State v.
Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470, portions of Ohio’s
sentencing statutes were unconstitutional to the extent they required judicial fact-
finding the imposition of sentences above the minimum term. R.C. 2929.14(B)
Scioto App. No. 11CA3408 44
was one of the offending portions. We decline to remand the case to the trial court
to consider an unconstitutional statute.
{¶89} Regarding Williams’ argument that his sentence was unduly harsh and
contrary to law, this argument is also unpersuasive. First, Williams fails to specify
how his sentence is too harsh, he fails to specify what law it contravenes, and he
fails to cite to any law to support this portion of his argument. These deficiencies
alone permit us to overrule this portion of his assignment of error.
{¶90} When reviewing felony sentences, this Court follows the two-step
approach the Supreme Court of Ohio outlined in State v. Kalish, 120 Ohio St. 3d
23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶ 4. See State v. Welch, 4th Dist. No.
08CA29, 2009-Ohio-2655, at ¶ 6. “First, [we] must examine the sentencing
court’s compliance with all applicable rules and statutes in imposing the sentence
to determine whether the sentence is clearly and convincingly contrary to law. If
this first prong is satisfied, [that is, if the sentence complies with the law,] the trial
court’s decision shall be reviewed under an abuse-of-discretion standard.” Kalish
at ¶ 4. “As to the first step, the Kalish court did not clearly specify what ‘pertinent
laws’ we are to consider to ensure that the sentence ‘clearly and convincingly’
adheres to Ohio law. The only specific guideline is that the sentence must be
within the statutory range * * *.” State v. Ross, 4th Dist. No. 08CA872, 2009-
Ohio-877, at ¶ 10.
Scioto App. No. 11CA3408 45
{¶91} “[T]rial courts have full discretion to impose sentences within the
statutory range and determine whether a sentence satisfies the overriding purposes
of Ohio’s sentencing statutes.” Welch at ¶ 11. “‘[I]n order for there to be an abuse
of discretion, the trial court’s decision must be “* * * so palpably and grossly
violative of fact or logic that it evidences not the exercise of will, but perversity of
will; not the exercise of judgment, but defiance of judgment; and not the exercise
of reason, but, instead, passion or bias.’” Welch at ¶ 12, quoting Nakoff v.
Fairview Gen. Hosp. (1996), 75 Ohio St. 3d 254, 256, 662 N.E.2d 1.
{¶92} Here, Williams cites no law of which his sentences run afoul. Nor do
we, upon our own review of his sentences, find them to be contrary to law. The
deficiencies in the verdict forms aside, Williams’ sentences were within the
permitted statutory ranges.
{¶93} Nor did the trial court abuse its discretion when sentencing Williams.
Count 1 carried a mandatory maximum sentence, and a major drug offender
specification, which also permitted Williams to serve an additional prison term.
None of the prison terms imposed against Williams demonstrated a perversity of
will, a defiance of judgment, or the exercise of passion or bias.
{¶94} Williams had a previous criminal history related to controlled
substances. In this case, the jury convicted Williams of possessing and trafficking
in multiple types of controlled substances, which included a massive amount of
Scioto App. No. 11CA3408 46
oxycodone. We cannot find the trial court abused its discretion when it sentenced
Williams to a total term of incarceration of 27 years.
{¶95} Accordingly we overrule Williams’ fifth assignment of error.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND
CAUSE REMANDED.
Kline, J., dissenting, in part.
{¶96} I concur in judgment only with the following exceptions. First, I
would not vacate Count 8. Here, the trial court instructed the jury as follows:
“Before you can find the individual Defendant[] * * * guilty, you must find beyond
a reasonable doubt that * * * the individual Defendant * * * had under his control a
device or instrument, to wit, digital scales, with purpose to use it criminally for the
commission of a felony.” (Emphasis added.) Transcript at 923. Therefore, based
on the presumption that the jury followed the trial court’s instruction, I would not
recognize plain error as to Count 8. See State v. Eafford, 132 Ohio St. 3d 159,
2012-Ohio-2224, 970 N.E.2d 891, ¶¶ 11, 17. Furthermore, I believe that Counts 2
and 9 are moot. Therefore, I would not address these counts.
{¶97} Accordingly, I respectfully dissent as to Counts 2, 8, and 9. I
respectfully concur in judgment only with the rest of the opinion.
Scioto App. No. 11CA3408 47
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN
PART, AND CAUSE REMANDED and that the Appellee and Appellant split costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.
Abele, P.J.: Concurs in Judgment and Opinion.
Kline, J.: Dissents in Part with Opinion as to A/E’s 2, 8, & 9 and with the remainder of
Opinion Concurs in Judgment Only.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.