State v. Redden

[Cite as State v. Redden, 2020-Ohio-878.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 19-COA-026
:
JAMES F. REDDEN :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court
of Common Pleas, Case No. 18-CRI-
195
JUDGMENT: AFFIRMED IN PART, REVERSED IN
PART, SENTENCE VACATED AND
REMANDED
DATE OF JUDGMENT ENTRY: March 6, 2020
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CHRISTOPHER R. TUNNELL MATTHEW J. MALONE
ASHLAND CO. PROSECUTOR 10 East Main St.
COLE F. OBERLI Ashland, OH 44805
110 Cottage St.
Ashland, OH 44805
Ashland County, Case No. 19-COA-026 2
Delaney, J.
{¶1} Appellant James F. Redden appeals from the June 27, 2019 judgment entry
of sentence of the Ashland County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose in September 2018 when Detective Brian Evans received
a complaint that methamphetamine was manufactured at 506 W. Tenth Street, Ashland,
by appellant.
{¶3} Evans’ first step was to contact METRICH, an inter-agency narcotics
investigation unit, for information about purchases of Sudafed and similar cold medicine.
Evans accessed NPlex, a law enforcement database cross-referencing purchases of
Sudafed and cold medicines containing Pseudoephedrine, a component in the
manufacture of methamphetamine. Evans found two purchases by appellant, both at
area Wal-Mart locations, on September 15 and October 13.
{¶4} Evans launched an investigation of appellant, his associates, and the
address where appellant was staying: 506 W. Tenth Street. Evans learned Rhonda
Shanks was a frequent visitor to the address, and running her name through NPlex
yielded several purchases of Pseudoephedrine on October 3. Evans observed “Skip”
Shenberger, another of appellant’s associates, with appellant at a local Wal-Mart on
October 27. The same day, NPlex revealed Shenberger purchased Pseudoephedrine.
Surveillance at 506 W. Tenth Street indicated Barbara Baker also stopped by and
dropped off a small bag to appellant.
{¶5} During this surveillance, police observed appellant walk to the abandoned
house next door—502 W. Tenth Street--with its owner, Donald Bratton. Bratton testified
Ashland County, Case No. 19-COA-026 3
at trial that appellant approached him about buying the property, even though it was not
for sale and was in a state of “major disrepair.” Nevertheless, appellant was interested in
buying it, and agreed to pay Bratton $2500 on land contract. Bratton had placed a padlock
on the door of the house. On the day they were observed by police, Bratton brought
appellant over to the property to point out various issues.
{¶6} Based upon his investigation into the meth operation, Evans prepared an
affidavit for a search warrant to search 506 W. Tenth Street including appellant’s vehicle,
boat, cell phone, and person. Police intended to serve the search warrant on October 29,
2018, but extra caution was required due to the hazardous nature of chemicals used in
methamphetamine preparation. As police watched the house, they noticed appellant go
next door with Bratton and decided to wait to serve the warrant until the next day.
{¶7} While in the neighborhood the next day, Evans unexpectedly encountered
appellant walking a few blocks away from the residence. Evans and another detective
stopped appellant, spoke to him, and advised they had a search warrant for his residence.
Appellant and Evans spoke briefly. Appellant agreed to accompany detectives back to
the residence and the search warrant was executed.
{¶8} The search of 506 W. Tenth Street--the residence where appellant lived
with Eugene Milkey--yielded aluminum foil, Pseudoephedrine pills, a digital scale, a
funnel, filters, Ziploc baggies, gloves, suspected narcotics, lithium strips, lithium batteries,
and cold packs. Evans testified these items are consistent with the “cooking” of
methamphetamine.
{¶9} With Britton’s permission, police also searched the abandoned property at
502 W. Tenth Street. Before they could search, Britton realized the padlock on the
Ashland County, Case No. 19-COA-026 4
property was not his. Police spoke to appellant and learned he had placed his own
padlock on the property. At 502 W. Tenth Street, police found a Rite-Aid receipt with
appellant’s name on it, a cold-pack box, a Pseudoephedrine blister pack, an aluminum
casing for a lithium battery, a lithium strip, blue rubber gloves, and two lighter-fuel
containers. Evans testified these items are also consistent with the “cooking” of
methamphetamine.
{¶10} Detective Richard Clapp of the Mansfield Police Department was called in
to assist in cleanup of hazardous materials found at 502 and 506 W. Tenth Street. Clapp
testified the materials are consistent with the preparation and manufacture of
methamphetamine by the “shake and bake” method in which methamphetamine is
prepared in a container such as a Gatorade bottle.
{¶11} Appellee called several of appellant’s accomplices as trial witnesses.
Rhonda Shanks testified she has known appellant for a few years and he asked her to
help him find a place to live where he could “cook.” Shanks connected appellant with
Eugene Milkey, who permitted appellant to live in a bedroom in his residence at 506 W.
Tenth Street. Appellant provided Shanks and Milkey with methamphetamine to smoke.
Shanks testified appellant asked her to purchase Pseudoephedrine for him and she
agreed to do so in exchange for meth. Shanks testified she bought Sudafed at Wal-Mart,
Rite-Aid, and CVS in October 2018. Shanks also testified that appellant once asked her
to hold a bottle with a hose attached.
{¶12} Milkey testified appellant provided him with a white substance which he
smoked through aluminum foil.
Ashland County, Case No. 19-COA-026 5
{¶13} “Skip” Shenberger testified he met appellant at Milkey’s house and got high
with him. Appellant provided Shenberger with an unknown yellow substance; Shenberger
didn’t know what it was but asked to buy $100 more of it. Shenberger also purchased
Sudafed from Wal-Mart for appellant.
{¶14} Barbara Baker is familiar with appellant and occasionally allowed him to
borrow her vehicle. She purchased Claritin-D for appellant at Wal-Mart and CVS.
{¶15} A Wal-Mart witness provided security videotape of several of the
transactions in which Pseudoephedrine was purchased by Shanks on September 17, by
Baker on October 13, by Shenberger on October 27, 2018, and by an unknown male on
September 15.
{¶16} A B.C.I. forensic scientist testified that appellee’s Exhibit 1, a plastic baggie
containing residue, tested positive as methamphetamine.
{¶17} Appellant called one witness on his behalf, Detective Wayne Liggett of the
Richland County Sheriff’s Office. Liggett was not involved in the investigation but assisted
in the cleanup of hazardous materials generated by the preparation of methamphetamine.
Liggett acknowledged that a report he prepared misidentified appellant as James Story,
which Liggett explained as a clerical error.
{¶18} Appellant was charged by indictment with one count of illegal manufacture
of drugs [methamphetamine] pursuant to R.C. 2925.04(A), a felony of the second degree
[Count I]; illegal assembly or possession of chemicals for manufacture of drugs pursuant
to R.C. 2925.041(A), a felony of the third degree [Count II]; and one count of aggravated
trafficking in drugs [methamphetamine] pursuant to R.C. 2925.03(A)(1), a felony of the
fourth degree [Count III]. Appellant entered pleas of not guilty.
Ashland County, Case No. 19-COA-026 6
{¶19} On December 21, 2018, appellant filed a motion to suppress his statements
“as a result of un-mirandized custodial interrogation.” Appellee responded with a
memorandum in opposition. The matter proceeded to an evidentiary hearing on January
28, 2019, and the trial court gave the parties an opportunity to file post-hearing
memoranda. By Judgment Entry filed March 1, 2019, the trial court granted the motion
to suppress in part and overruled it in part. Appellant’s statements to Evans when he was
stopped on the street were suppressed; appellant’s later statements at the residence and
at the Ashland County Jail were not suppressed.
{¶20} The matter proceeded to trial by jury on April 30, 2019, concluding May 2,
2019, and appellant was found guilty as charged. Sentencing was deferred pending a
pre-sentence investigation (P.S.I), which has been filed under seal for our review.
{¶21} Appellant appeared for sentencing on June 24, 2019. The trial court
imposed a prison term of 5 years upon Count I, 2 years upon Count II, and 18 months
upon Count III. The trial court further noted appellant committed the instant offenses
while on post-release control, thus an additional 12-month sentence was imposed for the
P.R.C. violation. The prison terms are to be served consecutively for a total aggregate
sentence of nine and a half years.
{¶22} Appellant now appeals from the trial court’s June 27, 2019 Judgment
Entry—Sentencing.
{¶23} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶24} “I. THE TRIAL COURT ERRED IN ITS DETERMINATION OF
APPELLANT’S MOTION TO SUPPRESS.”
Ashland County, Case No. 19-COA-026 7
{¶25} “II. APPELLANT’S TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL.”
{¶26} “III. THE TRIAL COURT ERRED BY SENTENCING APPELLANT ON
COUNTS WHICH WERE ALLIED OFFENSES OF SIMILAR IMPORT WHICH SHOULD
HAVE MERGED FOR SENTENCING PURPOSES.”
ANALYSIS
I.
{¶27} In his first assignment of error, appellant argues the trial court erred in
overruling his motion to suppress. We disagree.
{¶28} Appellate review of a trial court’s decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713
N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role
of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 145,
675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court must
independently determine as a matter of law, without deference to the trial court’s
conclusion, whether the trial court’s decision meets the applicable legal standard. State
v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other
grounds.
{¶29} There are three methods of challenging a trial court’s ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In
Ashland County, Case No. 19-COA-026 8
reviewing a challenge of this nature, an appellate court must determine whether the trial
court’s findings of fact are against the manifest weight of the evidence. See, State v.
Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,
597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed
to apply the appropriate test or correct law to the findings of fact. In that case, an appellate
court can reverse the trial court for committing an error of law. See, Williams, supra.
Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final
issues raised in a motion to suppress. When reviewing this type of claim, an appellate
court must independently determine, without deference to the trial court’s conclusion,
whether the facts meet the appropriate legal standard in any given case. State v. Curry,
95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).
{¶30} In the instant case, appellant argues the trial court incorrectly decided the
ultimate issue posed by the motion to suppress, to wit, that Evans’ purported “two-step
interrogation process” thwarted appellant’s right to remain silent. Evidence at the
suppression hearing established that Evans questioned appellant during three “phases”
of the investigation: first, when Evans encountered appellant on Cottage Street; second,
when appellant returned to the residence with Evans while the search warrant was
executed; and third, while appellant was held at the Ashland County Jail. Evans
Mirandized appellant after “phase one.” Appellant stated that he understood. While he
waited with Evans at the residence during “phase two,” he willingly spoke to the detective
and did not invoke his right to remain silent. This conversation occurred approximately
25 minutes after Evans had Mirandized appellant a few blocks away on Cottage Street.
The search took several hours, after which appellant was arrested and transported to the
Ashland County, Case No. 19-COA-026 9
Ashland County Jail. On October 31, 2018, Evans spoke with appellant at the Jail (“phase
three”) without re-Mirandizing him, but appellant was still aware of his rights because he
asked Evans about the implications of making a statement “off the record.”
{¶31} The trial court ultimately suppressed appellant’s statements during “phase
one” but found the post-Miranda statements during phases two and three admissible.
{¶32} Appellant now argues that all of his statements should have been excluded
because they were an extension of his conversation with Evans in “phase one.” The
record established, though, “that the Miranda warning was effectively communicated to
and understood by [appellant].” Judgment Entry, 2. The Fifth Amendment to the United
States Constitution guarantees that “‘[n]o person * * * shall be compelled in any criminal
case to be a witness against himself,’ and that ‘the accused shall * * * have the Assistance
of Counsel.’” (Ellipses sic.) Miranda v. Arizona, 384 U.S. 436, 442, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966). In light of the inherent coercion involved in custodial interrogation,
Miranda established “a set of prophylactic measures” to safeguard the constitutional
privilege against self-incrimination. Id. In broad terms, Miranda held that the state may
not use a defendant's statements from custodial interrogation “unless it demonstrates the
use of procedural safeguards effective to secure the privilege against self-incrimination.”
Miranda at 444. Prior to questioning, the police must warn the suspect “that he has a right
to remain silent, that any statement he does make may be used as evidence against him,
and that he has a right to the presence of an attorney, either retained or appointed.” Id.The Supreme Court recognized the importance of a suspect's “real understanding” of his
rights and his intelligent decision whether to exercise them. Id. at 469, 86 S.Ct. 1602.
Ashland County, Case No. 19-COA-026 10
{¶33} Miranda conditioned the admissibility at trial of any custodial confession on
warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver
of rights before custodial questioning generally requires exclusion of any statements
obtained. Missouri v. Seibert, 542 U.S. 600, 608, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).
{¶34} Appellant argues Evans’ successive questioning constitutes a “Seibert
violation.” In Seibert, supra, the United States Supreme Court addressed the issue of
whether the technique of successive interrogations, the first before Miranda warnings and
the other(s) after, violated a defendant's Miranda rights. The suspect was taken to the
police station for questioning after a fire at her home resulted in the death of one of the
residents. She was questioned about the incident without first being provided her Miranda
warnings and she made incriminating statements. The suspect was then issued her
Miranda warnings and was confronted with the statements she had made before she was
provided such warnings; she then confirmed her previous statements.
{¶35} The Court was troubled by the adherence to litigating the question of
voluntariness where Miranda warnings were not given until after law enforcement had
obtained a confession. 542 U.S. at 609. The Court held that the following factors should
be considered in determining whether Miranda warnings delivered midstream could be
effective enough to accomplish their object: “the completeness and detail of the questions
and answers in the first round of interrogation, the overlapping content of the two
statements, the timing and setting of the first and the second, the continuity of police
personnel, and the degree to which the interrogator's questions treated the second round
as continuous with the first.” Id. at 615; see, State v. Bonnell, 5th Dist. Delaware No. 07
Ashland County, Case No. 19-COA-026 11
CAA 01 0006, 2008–Ohio–28, ¶ 37; State v. Furniss, 5th Dist. Fairfield No. 12-CA-41,
2013-Ohio-2064, ¶ 22.
{¶36} As noted by the Ohio Supreme Court in State v. Farris, 109 Ohio St.3d 519,
2006–Ohio–3255, 849 N.E.2d 985, “Seibert points out that in ‘question first’ scenarios
when the circumstances of the given case show that the Miranda warning could not
reasonably be found effective, the post warning statements are inadmissible because ‘the
earlier and later statements are realistically seen as parts of a single, unwarned sequence
of questioning.’ Id. at 612, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643, fn. 4.” Farris,
¶ 21.
{¶37} We find no such “single, unwarned sequence” in the instant case. Phase
one of Evans’ questioning of appellant took approximately 10 minutes at the side of the
road. Statements made during that phase, pre-Miranda warnings, were suppressed. The
trial court further found that Seibert is inapplicable to appellant’s statements in phases
two and three because there was no lengthy, exhaustive interrogation prior to Evans’
Miranda warning and we agree. This case is factually distinguishable from Seibert and
its rationale does not apply.
{¶38} Upon our review of the record, we find that the trial court was correct in
granting appellant’s motion to suppress his statements in phase one, and correct in
overruling the motion as to phases two and three. Given the length of time and difference
of places between the two statements, the connection between the two statements “was
sufficiently attenuated as to dissipate the taint of his suppressed statements.” Furniss,
supra, 2013-Ohio-2064, at ¶ 22. We agree with the trial court that the instant case is
distinguishable from Seibert in that the first round of interrogation was neither complete
Ashland County, Case No. 19-COA-026 12
nor detailed, nor did the phases overlap to the extent that they might be deemed
“continuous.” The evidence also indicates that during phase three at the jail, appellant
remained sufficiently aware of his rights to the extent that he suggested making a
statement “off the record.”
{¶39} We conclude, therefore, that the trial court did not err in overruling the
motion to suppress in part and granting it in part. Appellant’s first assignment of error is
overruled.
II.
{¶40} In his second assignment of error, appellant argues defense trial counsel
was ineffective in failing both to file an affidavit of indigence and to move to waive
mandatory fines. In light of the Ohio Supreme Court’s recent decision in State v. Davis,
Slip Opinion No. 2020-Ohio-309, --N.E.3d--, on the record of the instant case, we agree.
{¶41} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,
“a court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158(1955).
{¶42} “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
Ashland County, Case No. 19-COA-026 13
way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the
wide range of professionally competent assistance.” Id. at 690.
{¶43} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
{¶44} R.C. 2929.19(B)(5) states, “Before imposing a financial sanction under
section 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised
Code, the court shall consider the offender's present and future ability to pay the amount
of the sanction or fine.” The Ohio Supreme Court has held that even if an affidavit of
indigency is timely and properly filed, a defendant “is not automatically entitled to waiver
of that fine.” State v. Gipson, 80 Ohio St.3d 626, 634, 1998-Ohio-659, 687 N.E.2d 750.
There must be a showing that a defendant is unable to pay the fines, and there is no
affirmative duty on the trial court to make a finding that a defendant is able to pay. Id.,syllabus.
{¶45} Appellant argues defense trial counsel was ineffective in failing to file an
affidavit of indigence and to move to waive the mandatory fines. We note appellant did
file an affidavit of indigency at the first hearing before the trial court, and he was found to
be indigent at both the bond hearing on November 2, 2019 and at sentencing on June
24, 2019.
{¶46} When a criminal defendant can show that his counsel's performance was
deficient and that the deficient performance was prejudicial to his case, there is
Ashland County, Case No. 19-COA-026 14
constitutional error. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,
80 L.Ed.2d 674, 693 (1984). Thus, even if the trial court did not err in imposing the fine,
we must consider whether counsel's failure to file an affidavit caused a prejudicial result.
A number of Ohio courts have recognized that failure to file an affidavit of indigency, under
the right circumstances, can constitute prejudicial error. E.g., State v. Mendoza, 6th Dist.
Lucas App. No. L-94-242, 1995 WL 413143, at 3 (July 14, 1995); State v. Joy, 4th Dist.
Lawrence App. Nos. 92 CA 24, 92 CA 30, 1993 WL 491325, at 3 (Nov. 24, 1993); State
v. Creech, 4th Dist. Scioto App. No. 92 CA 2053, 1993 WL 235566 at 6 (June 29, 1993).
{¶47} In State v. Sheffield, 2nd Dist. Montgomery App. No. 20029, 2004-Ohio-
3099, at ¶ 13, the court stated at paragraph 14:
The failure to file an affidavit of indigency prior to sentencing
may constitute ineffective assistance of counsel if the record shows
a reasonable probability that the trial court would have found
Defendant indigent and relieved him of the obligation to pay the fine
had the affidavit been filed. State v. Cochran (June 5, 1998), Clark
App. No. 97CA50; State v. Stearns (Oct. 9, 1997), Cuyahoga App.
No. 71851; State v. Gilmer (April 26, 2002), Ottawa App. No. OT-01-
015, 2002-Ohio-2045; State v. McDowell (Sept. 30, 2003), Portage
App. No.2001-P-0149, 2003-Ohio-5352; State v. Powell (1992), 78
Ohio App.3d 784, 787, 605 N.E.2d 1337; State v. Williams (1995),
105 Ohio App.3d 471, 482, 664 N.E.2d 576.
{¶48} While we have previously rejected appellant’s argument, State v. Shaw, 5th
Dist. Muskingum No. CT2018-0054, 2019-Ohio-2387, ¶ 21, the Ohio Supreme Court
Ashland County, Case No. 19-COA-026 15
recently held that “[t]he court of appeals * * * must look at all the circumstances that the
defendant sets forth in attempting to demonstrate prejudice and determine whether there
is a reasonable probability that the trial court would have granted a motion to waive costs
had one been made.” State v. Davis, Slip Opinion No. 2020-Ohio-309, --N.E.3d--, ¶ 16.
{¶49} We have previously noted that where an appellant is represented by
appointed counsel, and there was thus necessarily a determination made that he was
indigent under Chapter 120 of the Revised Code, a reasonable probability exists that the
trial court would have found appellant indigent had his trial counsel filed an affidavit of
indigency prior to sentencing and the trial counsel was ineffective in failing to move for
waiver of the fines. State v. Warren, 5th Dist. Fairfield No. 18-CA-42, 2019-Ohio-2927, ¶
102. In the instant case, we find a reasonable probability exists that the trial court would
have found appellant indigent had an affidavit been filed prior to sentencing and that the
fines may have been waived. We note the P.S.I. indicates appellant was unemployed
with no assets prior to sentencing.
{¶50} Accordingly, appellant’s second assignment of error is sustained and this
matter is remanded to the trial court for a hearing in order to determine whether appellant
is indigent for the purpose of avoiding the mandatory fines imposed by statute. Warren,
supra, 2019-Ohio-2927 at ¶ 103.
III.
{¶51} In his third assignment of error, appellant argues his convictions upon
Counts I and II are allied offense of similar import which should have merged for purposes
of sentencing. Under the circumstances of this case, we agree.
Ashland County, Case No. 19-COA-026 16
{¶52} R.C. 2941.25, Ohio's allied offense statute, provides:
(A) Where the same conduct by defendant can be construed
to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or
more offenses of the same or similar kind committed separately or
with a separate animus to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
{¶53} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the
Supreme Court of Ohio explained that “the same conduct can be separately punished if
that conduct constitutes offenses of dissimilar import.” Id. at ¶ 20, citing R.C. 2941.25(B).
Offenses are dissimilar in import “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 paragraph two of the syllabus.
{¶54} Appellee points out that appellant did not argue the offenses should merge
at the trial level. In State v. Rogers, 143 Ohio St.3d 385, the Ohio Supreme Court held
that where a defendant fails to seek the merger of his convictions as allied offenses of
similar import in the trial court, he forfeits any allied offenses claim, except to the extent it
constitutes plain error. Rogers at ¶ 21–25, citing State v. Quarterman, 140 Ohio St.3d
464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15–16. “Crim.R. 52(B) affords appellate courts
Ashland County, Case No. 19-COA-026 17
discretion to correct ‘[p]lain errors or defects affecting substantial rights’ notwithstanding
the accused's failure to meet his obligation to bring those errors to the attention of the trial
court.” Rogers at ¶ 22. The defendant “bears the burden of proof to demonstrate plain
error on the record.” Id., citing Quarterman at ¶ 16. To demonstrate plain error, the
defendant must show “‘an error, i.e., a deviation from a legal rule’ that constitutes ‘an
“obvious” defect in the trial proceedings’” and that the error affected a substantial right,
i.e., the defendant must demonstrate a “reasonable probability” that the error resulted in
prejudice, affecting the outcome of the trial. Rogers at ¶ 22, quoting State v. Barnes, 94
Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). “We recognize plain error ‘with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.’” Lyndhurst v. Smith, 8th Dist. Cuyahoga No. 101019, 2015-Ohio-2512, 2015 WL
3899130, ¶ 32, quoting State v. Landrum, 53 Ohio St.3d 107, 110, 559 N.E.2d 710 (1990).
{¶55} We have therefore examined the record for evidence that appellant’s
conduct constituted two or more offenses of dissimilar import, or resulted in two or more
offenses of the same or similar kind committed separately or with a separate animus to
each. At the trial level, appellee argued the same conduct constituted two separate
offenses. We note the bill of particulars filed January 4, 2019 cites the same conduct in
Counts I and II in paragraphs that are effectively identical, to wit, the purchases of
Pseudoephedrine by appellant and others who provided it to appellant for the purpose of
appellant’s manufacture of methamphetamine.
{¶56} In closing argument, appellee argued proof of Count I provided the proof of
Count II, citing the same evidence to the following extent:
* * * *.
Ashland County, Case No. 19-COA-026 18
So when you add these together, and this is manufacture or
engage in the production of methamphetamine is only but one result,
guilty. And going back to my math equation from earlier, we have
three counts, to Count 1, Count 2, and Count 3.
So I am going to do three math problems for you, 1 plus 1,
plus 1, equals 3. Count 1 is guilty, and I have to do the same exercise
three times, so I have to show 1 plus 1, plus 1 equals 3.
* * * *.
But you are going to hear me repeat the same thing maybe a
few times because I have to show how each one of those go
together. So on Count 2, we have the Illegal Assembly or
Possession of Chemicals for the Manufacture of Drugs, and we have
the ID and he’s wearing the pants, and he asked Mr. Shenberger and
Ms. Shanks and Ms. Baker to get the Sudafed, and asking him to get
the Sudafed or Claritin D, and also have Detective Evans testify
about the Defendant.
* * * *.
T. 369-370.
{¶57} Upon review of the bill of particulars and the closing argument of appellee,
and applying Ruff, supra, we must conclude that Counts I and II should have merged for
purposes of sentencing. The two counts were of similar import, were committed at the
same time and were not committed with a separate animus or motivation.
Ashland County, Case No. 19-COA-026 19
{¶58} The trial court imposed a prison term of 5 years upon Count I and 2 years
upon Count II, to be served consecutively to each other and to an 18-month term upon
Count III and a 12-month sanction for revocation of post-release control. The sentences
for all counts were ordered to be served consecutively. The order of consecutive service
means that recognition of plain error would affect the length of appellant's sentence. State
v. DeGarmo, 5th Dist. Muskingum No. CT2018-0061, 2019-Ohio-4050, ¶ 32, appeal not
allowed, 157 Ohio St.3d 1562, 2020-Ohio-313, 138 N.E.3d 115. We therefore find a
manifest miscarriage of justice would occur if the counts were not merged. Id.{¶59} Appellant was convicted of one count of illegal manufacture of drugs in
violation of R.C. 2924.04(A), which states: “No person shall knowingly cultivate
marihuana or knowingly manufacture or otherwise engage in any part of the production
of a controlled substance.”
{¶60} Appellant was also convicted of one count of illegal assembly or possession
of chemicals used to manufacture controlled substance with intent to manufacture
controlled substance in violation of R.C. 2925.041(A), stating: “No person shall knowingly
assemble or possess one or more chemicals that may be used to manufacture a
controlled substance in schedule I or II with the intent to manufacture a controlled
substance in schedule I or II in violation of section 2925.04 of the Revised Code.”
{¶61} In State v. Woods, 5th Dist. Ashland No. 15-COA-036, 2016-Ohio-4830, at
¶ 16-25, we reviewed with approval our decision in State v. Carr, 5th Dist. Perry No.
15CA00007, 2016–Ohio–9. Both Woods and Carr address the issue raised by appellant
herein, and we find both decisions significant to the instant case:
Ashland County, Case No. 19-COA-026 20
In the case at bar, it was clear when the police entered the
home that methamphetamine had been manufactured inside the
home. Carr admitted to manufacturing methamphetamine.
Plastic tubing, baggies, envelopes, plastic bottles, batteries,
cold compact bags, aquarium rocks and coffee filters are not
“chemicals” as required under R.C. 2925.041. None of the active
ingredient such as pseudoephedrine [Footnote omitted] was found;
rather, only the discarded boxes were recovered from the trash. In
his statement to the police, Carr stated that other parties provided
the necessary ingredients.
Just as a baker would need flour to “assemble” or
“manufacture” a cake, it is scientifically impossible to manufacture
methamphetamine without the raw chemical ingredients, such as
pseudoephedrine. In other words, every time a person commences
a “cook” he or she must necessarily possess the requisite raw
chemical ingredients necessary to manufacture the end product of
crystal methamphetamine. Thus, a defendant must always
“knowingly assemble or possess one or more chemicals that may be
used to manufacture” methamphetamine with the “intent to
manufacture.”
If the police had entered the home and found, for example, 50
boxes of pseudoephedrine and nothing more, a case could be made
for illegal assembly. It is not illegal to possess pseudoephedrine, but
Ashland County, Case No. 19-COA-026 21
the unexplained possession of such a large amount would be
circumstantial evidence. If the state can establish the mens rea of
“with the intent to manufacture” a defendant can be convicted of
assembly or possession in violation of R.C. 2925.041.
Applying the facts and viewing Carr's conduct in this case,
illegal manufacture of drugs in violation of R.C. 2924.04 and illegal
assembly or possession of chemicals used to manufacture controlled
substance with intent to manufacture controlled substance in
violation of R.C. 2925.041 did not cause separate, identifiable harm.
Carr did not commit the offenses separately nor were the two
offenses committed with separate animus or motivation. Carr's
motivation and animus for obtaining and/or assembling the
chemicals was to manufacture methamphetamine.
Accordingly, we find the assembly or possession of the
chemicals and the manufacture of methamphetamine are allied
offenses. Accord, State v. Coleman, 5th Dist. Richland No. 14–CA–
82, 2015–Ohio–3907, ¶ 52; See, State v. Davidson, 5th Dist. Perry
No. 12 CA 7, 2013–Ohio–194, ¶ 47(applying the pre-Ruff allied
offenses test set forth in State v. Johnson, 128 Ohio St.3d 153, 942
N.E.2d 1061, 2010–Ohio–6314); State v. Stevenson, 5th Dist. Perry
No. 09CA16, 2010–Ohio–2060, ¶ 32 (applying the pre-Ruff allied
offenses test set forth in State v. Cabrales, 118 Ohio St .3d 54, 886
N.E.2d 181, 2008–Ohio–1625 and finding the possession of
Ashland County, Case No. 19-COA-026 22
chemicals and the engagement in any part of the production of drugs
are allied offenses that do not have a separate animus); State v.
Collins, 12th Dist. Clinton Nos. CA2010–12–021, CA2010–12–022,
2012–Ohio–430 (applying the pre-Ruff allied offenses test set forth
in State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d 1061, 2010–
Ohio–6314).
* * *.
On the record in the case at bar, we find that Carr has
demonstrated that he was convicted of allied offenses of similar
import committed with the same conduct and with the same animus.
{¶62} In Woods, the state conceded the defendant’s sentences should merge in
accord with State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.2d 892. 2016-
Ohio-4830 at 25. In the instant case, appellee argues appellant committed the offenses
separately because he still had supplies on hand for the manufacturing of meth, i.e.,
Pseudoephedrine pills. Therefore, appellee maintains, appellant did not manufacture
meth every time he possessed supplies to do so. We find, however, that appellee
essentially argued at the trial level that appellant’s conduct proved both Counts I and II.
We are unable to identify separate, identifiable harms from each offense in this case.
Appellant did not commit the offenses separately nor were the two offenses committed
with separate animus or motivation. His motivation and animus for obtaining and/or
assembling the chemicals was to manufacture methamphetamine.
{¶63} Appellant’s third assignment of error is therefore sustained. The sentences
upon Counts I and II are vacated and the matter is remanded to the trial court for
Ashland County, Case No. 19-COA-026 23
resentencing. Appellee must elect the offense for which appellant should be punished.
Carr, supra, 2016-Ohio-9 at ¶ 44, citing State v. Whitfield, 124 Ohio St.3d 319, 2010-
Ohio-2, 922 N.E.2d 182, ¶ 25.
CONCLUSION
{¶64} Appellant’s first assignment of error is overruled. Appellant’s second and
third assignments of error are sustained. The sentences upon Counts I and II are
vacated. The judgment of the Ashland County Court of Common Pleas is therefore
affirmed in part and reversed in part, and this matter is remanded to the trial court for
further proceedings.
By: Delaney, J.,
Gwin, P.J. and
Baldwin, J., concur.