State v. Pippen , 2012 Ohio 4692 ( 2012 )

[Cite as State v. Pippen, 2012-Ohio-4692.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 11CA3412
:
vs. : Released: September 25, 2012
:
DANIEL C. PIPPEN, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
APPEARANCES:
James H. Banks, Dublin, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecutor, and Pat Apel, Assistant Scioto County
Prosecutor, Portsmouth, Ohio, for Appellee.
McFarland, J.:
{¶1} Appellant, Daniel C. Pippen, 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, and additional specifications. Pippen 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
consolidating the trials, not excluding a lab report, not granting Pippen a
Scioto App. No. 11CA3412 2
continuance to conduct an independent analysis of the alleged controlled
substances, and the court erred by admitting hearsay evidence; 4) the verdict 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 Pippen’s 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.
{¶3} Next, we find there was substantial evidence upon which the jury could
have found Pippen was guilty of the charged offenses beyond a reasonable doubt,
and his convictions are not against the manifest weight. However, with respect to
Pippen’s 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, Pippen was not actually sentenced on that count
and, therefore, no conviction resulted on that count. Thus, we overrule Pippen’s
fourth assignment of error.
Scioto App. No. 11CA3412 3
{¶4} Since Pippen 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.
{¶5} In his third assignment of error, Pippen did not provide legal support
for his contention the trials were improperly consolidated and for his contention
the trial court erred in overruling his Crim.R. 29(A) motion, and we decline to
address these portions of the assignment of error. Moreover, the trial court did not
err in permitting the lab report be admitted into evidence, and it was within the trial
court’s discretion to deny Pippen’s motion to continue the trial date. Finally, the
trial court did not err in admitting evidence regarding an anonymous informant and
an anonymous note. Thus, we overrule Pippen’s third assignment of error.
{¶6} Regarding the verdict forms, we find there were several deficiencies
that require us to remand the case to the trial court to either enter a judgment of
conviction for the correct level of the offenses or reduce the degree of offenses,
and sentence Pippen accordingly. Thus, we affirm Pippen’s fourth assignment of
error in part, and overrule it in part.
{¶7} Finally, as addressed in the various other assignments of error raised by
Pippen, and also sua sponte, we find several sentencing errors by the trial court and
therefore, we sustain Pippen’s fifth assignment of error, in part.
Scioto App. No. 11CA3412 4
{¶8} Thus, we affirm in part and reverse in part the trial court’s judgment
and remand the case for proceedings consistent with this opinion.
FACTS
{¶9} 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.
{¶10} 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.
{¶11} As a result of this conversation, Timberlake began checking the police
department’s records for mention of Lansing. One month earlier, on September
Scioto App. No. 11CA3412 5
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.
{¶12} 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.
{¶13} 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.
{¶14} Law enforcement found Daniel Pippen in the upstairs restroom and
Tyrone Dixon, Evan Howard, and Eric Durr in a small upstairs bedroom. The
Scioto App. No. 11CA3412 6
bedroom had a dresser and a mattress in it, along with a pile of money on the floor.
The money totaled $3,090.
{¶15} 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.
{¶16} 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
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.
{¶17} The grand jury indicted Pippen 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
Scioto App. No. 11CA3412 7
convicted Pippen 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.
Count 3: “Trafficking in Drugs/Heroin/Within the Vicinity of a School.”
The jury found the amount was equal to or greater than one
gram but less than five (5) grams, 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.
Scioto App. No. 11CA3412 8
Count 9: “Possession of Marijuana.” The jury found the amount was less
than the bulk amount.
Count 10: “Conspiracy to Traffic in Drugs, F2.”
{¶18} The trial court sentenced Pippen to 27 years in prison. Pippen now
appeals.
ASSIGNMENTS OF ERROR
I. THE EVIDENCE PRESENTED AT TRIAL IS INSUFFICIENT TO
SUPPORT DEFENDANT’S CONVICTION, WHICH
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 IN ITS RULINGS AT TRIAL,
INCLUDING BUT NOT LIMITED TO THE CONSOLIDATION OF
APPELLANT’S CASE WITH THE CO-DEFENDANTS, DENIAL
OF PIPPEN’S 29(A) MOTION AND IN THE ADMISSION OF
EVIDENCE SUCH TO REQUIRE REVERSAL OF DEFENDANT’S
CONVICTIONS.
Scioto App. No. 11CA3412 9
IV. THE VERDICT FORMS DO NOT SUPPORT DEFENDANT’S
CONVICTIONS.
V. THE TRIAL COURT ERRED IN CONVICTING AND
SENTENCING THE DEFENDANT.
LEGAL ANALYSIS
{¶19} After reviewing the record, we have noted an initial threshold matter
that must be addressed related to the trial court’s characterization of Pippen’s
sentence imposed as a result of his major drug offender specification. As will be
more fully discussed, infra, when sentencing Pippen, the trial court incorrectly
stated that this portion of Pippen’s 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.
{¶20} 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
Scioto App. No. 11CA3412 10
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.
{¶21} 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.
{¶22} Here, the jury convicted Pippen 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
Scioto App. No. 11CA3412 11
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.
{¶23} Thus, Pippen 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 Pippen to an
additional prison term of ten years for the major drug offender specification,
stating on the record that this additional ten-year term was mandatory.
{¶24} 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.”
{¶25} The distinction between mandatory and nonmandatory prison terms is
important when determining whether a court may grant an offender judicial
1
R.C. 2929.14 has since been amended.
Scioto App. No. 11CA3412 12
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 Pippen’s aggregate sentence was 27 years, he
was not eligible for judicial release because his aggregate sentence was greater
than ten years.
{¶26} However, Revised Code Section 2929.20 has since been amended and
Pippen will eventually be eligible for judicial release, even with a prison 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 Pippen’s 27-
year sentence are nonmandatory, Pippen 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.”
{¶27} Accordingly, because the trial court incorrectly stated the ten-year
prison term for Pippen’s major drug offender specification was mandatory, we
conclude that this portion of the sentence was contrary to law and an abuse of
Scioto App. No. 11CA3412 13
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
{¶28} In his first assignment of error, Pippen argues his convictions were
against the manifest weight of the evidence and based upon insufficient evidence.
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.
{¶29} “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-
Scioto App. No. 11CA3412 14
Ohio-3671, at ¶ 10; State v. Kulchar, 4th Dist. No. 10CA6, 2011-Ohio-5144, at ¶
31 (per curiam).
{¶30} “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,
citing State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997). 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, 58 Ohio
St.3d 40, 42, 567 N.E.2d 266 (1991), citing State v. Eskridge, 38 Ohio St. 3d 56,
526 N.E.2d 304 (1988), at paragraph two of the syllabus.
{¶31} 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, 73 Ohio St. 3d 323, 339, 652 N.E.2d 1000 (1995), citing State v.
Grant, 67 Ohio St. 3d 465, 620 N.E.2d 50 (1993). The trier of fact “is best able to
view the witnesses and observe their demeanor, gestures, and voice inflections, and
Scioto App. No. 11CA3412 15
use these observations in weighing the credibility of the proffered testimony.”
Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984).
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
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:
***
Scioto App. No. 11CA3412 16
“(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,
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
Scioto App. No. 11CA3412 17
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.”
a. Aggravated Trafficking in Drugs2
{¶32} 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.
2
We note the names of the offenses used in several of the verdict forms are incorrect, though this did not
prejudice Pippen. 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. 11CA3412 18
{¶33} Timberlake testified about the various controlled substances law
enforcement recovered from 518 Sixth Street. Pippen was present in the house
when law enforcement recovered these.
{¶34} 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
oxycodone and oxycodone’s “bulk amount” being five times the maximum daily
dosage, the pills were 121.6 times the bulk amount of oxycodone.
{¶35} 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.
{¶36} 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 Pippen was involved in
preparing for shipment, shipping, transporting, delivering, preparing for
Scioto App. No. 11CA3412 19
distribution, or distributing the oxycodone. It was also reasonable for the jury to
conclude Pippen 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.
{¶37} Although the case against Pippen and his co-defendants is based
entirely upon circumstantial evidence, circumstantial evidence is, by itself, a
sufficient basis for a conviction. Bostwick, 4th Dist. No. 10CA3382, 2011-Ohio-
3671, at ¶ 17, quoting State v. Smith, 4th Dist. No. 09CA29, 2010-Ohio-4507, at ¶
44, quoting State v. Franklin, 62 Ohio St. 3d 118, 124, 580 N.E.2d 1 (1991).
{¶38} Addressing Pippen’s’ contention that the state failed to prove
possession, even constructive possession, we disagree. Possession may be actual
or constructive. State v. Butler, 42 Ohio St. 3d 174, 176, 538 N.E.2d 98 (1989);
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, 70 Ohio St. 2d 87, 434 N.E.2d 1362 (1982), syllabus, and
State v. Wolery, 46 Ohio St. 2d 316, 329, 348 N.E.2d 351 (1976).
{¶39} 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.’”
Scioto App. No. 11CA3412 20
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, 93 Ohio App. 3d 301, 308, 638 N.E.2d
585 (8th Dist. 1993); State v. Riggs, 4th Dist. No. 98CA39, 1999 WL 727952
(Sept. 13, 1999). “[T]he crucial issue is not whether the accused had actual
physical 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.
{¶40} Pippen’s’ 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
Scioto App. No. 11CA3412 21
contraband, may establish constructive possession.” (Internal citations omitted,
emphasis added.) Riggs, 4th Dist. No. 98CA39, 1999 WL 727952, at *5.
{¶41} 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,
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.
{¶42} 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
Scioto App. No. 11CA3412 22
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.
{¶43} Likewise, in Riggs, 4th Dist. No. 98CA39, 1999 WL 727952, 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 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.
{¶44} The present case is akin to Riggs. “The presence of such a vast
amount of drug evidence in the [house] supports an inference that [Pippen] knew
about the presence of the drugs and that he, along with his [co-defendants],
exercised control over each of the items found.” Riggs, 4th Dist. No. 98CA39,
1999 WL 727952, at *5, citing State v. Soto, 8th Dist. No. 57301, 1990 WL
145651 (Oct. 4, 1990). Here, there were drugs scattered throughout the entire
house: 1,824 oxycodone pills, over 100 grams of marihuana, heroin, cocaine, and
Scioto App. No. 11CA3412 23
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 Pippen 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
Pippen knowingly possessed the various controlled substances were not against the
manifest weight of the evidence.
{¶45} 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 Pippen’s conviction for aggravated trafficking in drugs.
b. Trafficking in Marihuana
{¶46} 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.
Scioto App. No. 11CA3412 24
{¶47} 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
Pippen was trafficking the marihuana.
{¶48} 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
clearly lost its way and created a manifest miscarriage of justice. Thus, we affirm
Pippen’s conviction for trafficking in marihuana.3
c. Trafficking in Heroin
{¶49} 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.
{¶50} 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
Pippen was trafficking heroin.
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.
Scioto App. No. 11CA3412 25
{¶51} 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 Pippen’s conviction for trafficking in heroin.4
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:
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. 11CA3412 26
“(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,
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
Scioto App. No. 11CA3412 27
section 2929.13 of the Revised Code applies in determining whether to impose a
prison term on the offender.”
{¶52} When the jury found Pippen 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 Pippen’s 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
weight of the evidence either. Thus, we affirm Pippen’s convictions for
aggravated possession of drugs, possession of marihuana, and possession of
heroin.5
3. Possessing Criminal Tools
{¶53} 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).
{¶54} As with Pippen’s convictions for possession of controlled substances,
there was substantial evidence upon which a jury could find Pippen 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
5
Again, we discuss the errors with the verdict forms, infra.
Scioto App. No. 11CA3412 28
of drugs recovered from the house, permitted the jury to infer Pippen had a purpose
to use the scales criminally: to traffic the controlled substances. Thus, we affirm
Pippen’s conviction for possessing criminal tools.
4. Conspiracy to Traffic in Drugs
R.C. 2923.01 provides:
“(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.”
Scioto App. No. 11CA3412 29
{¶55} 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 Pippen was convicted
on the principle trafficking offense, he could not be convicted of conspiracy
involving the same offense. Contrary to Pippen’s argument that he was convicted
of conspiracy to traffic in drugs, based upon the following, we conclude that
Pippen was not actually convicted on the conspiracy count.
{¶56} 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 Pippen 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 Pippen
guilty of Count 10, the trial court did not impose a sentence for Count 10 and as a
result, Pippen was not convicted of Count 10. Therefore, there is no conspiracy
conviction to vacate.
Scioto App. No. 11CA3412 30
{¶57} As to the other counts discussed herein, as we have found Pippen’s
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
Pippen’s first assignment of error.
ASSIGNMENT OF ERROR II
A. Standard of Review
{¶58} In his second assignment of error, Pippen argues the trial court erred
in overruling his motion to suppress evidence. We disagree.
{¶59} 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 Pippen’s
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,
2004-Ohio-7008, 822 N.E.2d 1239, at ¶ 96, quoting State v. Waddy, 63 Ohio St. 3d
424, 443, 588 N.E.2d 819 (1992); citing State v. Brewer, 48 Ohio St. 3d 50, 60, 549
N.E.2d 491 (1990).
{¶60} 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
Scioto App. No. 11CA3412 31
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, 62 Ohio St. 3d 357, 366, 582 N.E.2d 972 (1992). “Accordingly, we defer
to the trial court’s findings of fact if they are supported by competent, credible
evidence.” State v. Westbrook, 4th Dist. No. 09CA3277, 2010-Ohio-2692, at ¶16,
citing State v. Landrum, 137 Ohio App. 3d 718, 722, 739 N.E.2d 1159 (4th Dist.
2000). “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
{¶62} After reviewing the record, we conclude that Pippen 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.
Scioto App. No. 11CA3412 32
{¶62} Here, although Pippen 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. Pippen did not own the residence or state he
lived there. Nor did Pippen establish he was an overnight guest who could 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, Pippen failed to establish he had standing to assert a Fourth
Amendment violation and the trial court was right to deny his motion.
{¶63} Accordingly, we overrule Pippen’s second assignment of error.
ASSIGNMENT OF ERROR III
A. Consolidation of Defendants, Crim.R. 29(A) Motion
{¶64} Initially, we note a deficiency in Pippen’s appellate brief. Pippen’s
brief, regarding the third assignment of error, does not comply with App.R.
16(A)(7), which provides: “The appellant shall include in its brief, under the
headings and in the order indicated, all of the following: * * * An argument
containing the contentions of the appellant with respect to each assignment of error
presented for review and the reasons in support of the contentions, with citations to
the authorities, statutes, and parts of the record on which appellant relies. The
argument may be preceded by a summary.” Pippen, however, has cited no
authority in support of his arguments that the trial court improperly consolidated
Scioto App. No. 11CA3412 33
the defendants’ trials and wrongly denied his Crim.R. 29(A) motion – not a single
statute, case, or treatise. Nor did Pippen even argue the issue of the Crim.R. 29(A)
motion beyond including it in the assignment of error.
{¶65} “‘If an argument exists that can support [an] assignment of error, it is
not this court’s duty to root it out.’” Thomas v. Harmon, 4th Dist. No. 08CA17,
2009-Ohio-3299, at ¶ 14, quoting State v. Carman, 8th Dist. No. 90512, 2008-
Ohio-4368, at ¶ 31. “‘It is not the function of this court to construct a foundation
for [an appellant’s] claims; failure to comply with the rules governing practice in
the appellate courts is a tactic which is ordinarily fatal.’” Catanzarite v. Boswell,
9th Dist. No. 24184, 2009-Ohio-1211, at ¶ 16, quoting Kremer v. Cox, 114 Ohio
App.3d 41, 60, 682 N.E.2d 1006 (1996). Therefore, “[w]e may disregard any
assignment of error that fails to present any citations to case law or statutes in
support of its assertions.” Frye v. Holzer Clinic, Inc., 4th No. 07CA4, 2008-Ohio-
2194, at ¶ 12. See, also, App.R. 16(A)(7); App.R. 12(A)(2); Albright v. Albright,
4th Dist. No. 06CA35, 2007-Ohio-3709, at ¶ 16. While we sometimes consider
deficient assignment of errors in the interest of justice, we find no need to do so
here.
B. Lab Report
{¶66} In his third assignment of error, Pippen argues the trial court denied
him the ability to have an independent analysis done on the alleged controlled
Scioto App. No. 11CA3412 34
substances. Accordingly, Pippen contends the trial court should have excluded the
lab reports from the evidence, or alternatively, it should have continued the trial to
permit Pippen to have the testing performed. We disagree with both propositions.
1. Exclusion of Lab Report
a. Standard of Review
{¶67} “The admission of evidence is within the sound discretion of the trial
court.” State v. Knauff, 4th Dist. No. 10CA900, 2011-Ohio-2725, at ¶ 22, citing
State v. Sage, 31 Ohio St. 3d 173, 510 N.E.2d 343 (1987), paragraph two of the
syllabus. “Absent an abuse of that discretion, an appellate court will not disturb a
trial court’s ruling on the admissibility of evidence.” State v. Blevins, 4th Dist. No.
10CA3353, 2011-Ohio-3367, at ¶ 31, citing State v. Martin, 19 Ohio St. 3d 122,
129, 483 N.E.2d 1157 (1985) (per curiam).
{¶68} “‘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, 5 Ohio St. 3d
217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St. 2d 151,
157, 404 N.E.2d 144 (1980). “Under this highly deferential standard of review, we
may not simply substitute our judgment for that of the trial court.” Woody v.
Woody, 4th Dist. No. 09CA34, 2010-Ohio-6049, at ¶ 35, citing In re Jane Doe I,
57 Ohio St. 3d 135, 137-138, 566 N.E.2d 1181 (1991). “Rather, we are limited to
Scioto App. No. 11CA3412 35
determining whether considering the totality of the circumstances, the trial court
acted unreasonably, arbitrarily or unconscionably.” Id., citing Briganti v. Briganti,
9 Ohio St. 3d 220, 222, 459 N.E.2d 896 (1984), citing Blakemore, 5 Ohio St. 3d at
218-220.
b. Legal Analysis
Ohio Revised Code Section 2925.51 provides:
“(A) In any criminal prosecution for a violation of this chapter or Chapter
3719. of the Revised Code, a laboratory report from the bureau of criminal
identification and investigation * * * is prima-facie evidence of the content,
identity, and weight or the existence and number of unit dosages of the substance.
“(B) The prosecuting attorney shall serve a copy of the report on the
attorney of record for the accused, or on the accused if the accused has no attorney,
prior to any proceeding in which the report is to be used against the accused other
than at a preliminary hearing or grand jury proceeding where the report may be
used without having been previously served upon the accused.
“* * *
“(E) Any person who is accused of a violation of this chapter * * * is
entitled, upon written request made to the prosecuting attorney, to have a portion of
* * * each of the substances that are, the basis of the alleged violation preserved for
the benefit of independent analysis performed by a laboratory analyst employed by
Scioto App. No. 11CA3412 36
the accused person * * *. The prosecuting attorney shall provide the accused’s
analyst with the sample portion at least fourteen days prior to trial * * *.”
{¶69} Nothing in the statute requires the court to exclude BCI&I’s report of
the chemical analysis of the substances because Pippen was unable to obtain an
independent analysis prior to trial. Nor does Pippen cite any law to support this
proposition. Thus, we overrule this portion of his assignment of error.
2. Motion to Continue Trial
a. Standard of Review
{¶70} “An appellate court must not reverse the denial of a continuance
unless there has been an abuse of discretion.” State v. Unger, 67 Ohio St. 2d 65,
67, 423 N.E.2d 1078 (1981), citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct.
841, 849, 11 L. Ed. 2d 921 (1964) and State v. Bayless, 48 Ohio St. 2d 73, 101, 357
N.E.2d 1035 (1976). “In evaluating a motion for a continuance, a court should
note, inter alia: the length of the delay requested; whether other continuances have
been requested and received; the inconvenience to litigants, witnesses, opposing
counsel and the court; whether the requested delay is for legitimate reasons or
whether it is dilatory, purposeful, or contrived; whether the defendant contributed
to the circumstance which gives rise to the request for a continuance; and other
relevant factors, depending on the unique facts of each case.” Unger at 67-68.
Scioto App. No. 11CA3412 37
b. Legal Analysis
{¶71} Here, the state hand-delivered the alleged controlled substances to the
bureau of criminal identification and investigation (“BCI&I”) on November 4,
2010. BCI&I completed its analysis of the substances on December 30, 2010 and
faxed a copy of the report containing its findings to the state on January 4, 2011.
The state sent a copy of the report to Pippen’s counsel on January 4, 2011.
{¶72} Pippen knew he was charged with a violation of Revised Code
Chapter 2925 on November 10, 2010, the date of his arraignment. However,
Pippen waited until January 7, 2011, three days before trial, to request the state
preserve a portion of the substances for independent analysis and to request a
continuance to complete such. Thus, we do not find the trial court’s decision to
deny Pippen’s request for a continuance was error.
{¶73} Looking at the Unger factors, Pippen’s request for a continuance did
not specify a requested length, but it took BCI&I over 50 days to analyze all of the
drugs involved. Presumably, it would take a number of weeks for an independent
analyst to complete the same, making Pippen’s request for a continuance a lengthy
one. However, Pippen’s only other requested continuance was to move his
arraignment from the morning to the afternoon of the same day, which weights in
his favor.
Scioto App. No. 11CA3412 38
{¶74} Conversely, the inconvenience to the witnesses, court, and opposing
counsel would have been rather significant, considering Pippen’s trial had been
consolidated with his co-defendants’ trials. Short of severing Pippen’s trial from
the others, continuing the matter would have been quite burdensome and possibly
would have become complex considering the speedy trial rights of Pippen’s co-
defendants.
{¶75} Weighing in Pippen’s favor though, if the fact that his request for a
continuance was legitimate and not dilatory. Once BCI&I’s report indicated a
portion of the substances were not contraband, Pippen was warranted in requesting
an independent analysis of the substances. On the other hand, Pippen could have
requested an independent analysis at any point after his arraignment and his delay
in doing so contributed to the circumstances that gave rise to his request for a
continuance.
{¶76} Considering all of these factors, though some of them weight in
Pippen’s favor, we cannot say the trial court’s decision to deny Pippen’s request
for a continuance was an abuse of discretion. Thus, we overrule this portion of
Pippen’s assignment of error.
Scioto App. No. 11CA3412 39
C. Timberlake’s Testimony
{¶77} Pippen’s final contention within this assignment of error is the trial
court erred when it permitted Timberlake to testify regarding his conversation with
an anonymous informant and the contents of an anonymous note. We disagree.
{¶78} “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). Hearsay is not admissible as evidence, unless a
specific exception applies. Evid.R. 802.
{¶79} Concerning the conversation with the anonymous informant,
Timberlake testified, over Pippen’s objection, “It was information about drug
activity in the city of Portsmouth.” (Tr. at 396.) Timberlake’s statement about the
general nature of his conversation with the anonymous person was not
inadmissible hearsay. There was no specific out-of-court statement offered to
prove the truth of the matter asserted. Rather, there was merely Timberlake’s
testimony describing the general subject matter of the conversation he had with the
person, which was not hearsay.
{¶80} Pippen then objected to Timberlake testifying about the content of the
anonymous note. The court held a bench conference, and it was agreed
Timberlake could not testify as to what the note said. (Tr. at 396-399.) Pippen did
not disagree with the outcome of the bench conference. Thus, Timberlake
Scioto App. No. 11CA3412 40
described the general nature of the note, stating it concerned “drug activity on
Sixth Street.” (Tr. at 399.) Pippen did not renew or continue his objection based
upon Timberlake’s description of the note’s subject matter, forfeiting his right to
complain of the matter upon appeal.
{¶81} Regarding Pippen’s argument that even if the evidence should not
have been excluded as hearsay, it was unfairly prejudicial, we disagree. Given the
additional testimony on the copious amount of drugs recovered from the house, the
chemical analyses performed, and the investigation that led to Pippen’s arrest and
indictment, we cannot say a general statements that an anonymous person and an
anonymous note had discussed alleged drug activity in Portsmouth, Ohio was
unfairly prejudicial.
{¶82} Accordingly, we overrule Pippen’s third assignment of error.
ASSIGNMENT OF ERROR IV
A. Standard of Review
{¶82} In his fourth assignment of error, Pippen argues his convictions
should be vacated because they do not contain the degree of the offenses or the
statutory sections pertaining to the various crimes. We agree in part.
R.C. 2945.75 provides:
“(A) When the presence of one or more additional elements makes an
offense one of more serious degree:
Scioto App. No. 11CA3412 41
***
(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.”
{¶83} 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,
4th Dist. No. 08CA9, 2009-Ohio-2632, at ¶ 24, citing State v. Huckleberry, 4th
Dist. No. 07CA3142, 2008-Ohio-1007, ¶ 18, citing Pelfrey at ¶ 14.
B. Legal Analysis
{¶84} 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
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 3,
Count 4, and Count 7.
Scioto App. No. 11CA3412 42
{¶85} Regarding the remaining counts, Count 2 did not specify the
controlled substance involved; Count 8, and Count 9 did not contain the degree of
the offense or proper findings regarding aggravating factors. Accordingly, we
must sustain Pippen’s assignment of error on these counts and remand the case to
the trial court to reduce the degree of those offenses.
{¶86} However, as will be explained in more detail, infra, because Counts 2
and 9 were merged with Counts 1 and 7, respectively, we conclude Pippen 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
{¶87} “[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
Dist. No. 09CA1, 2010-Ohio-865, at fn. 3, citing New, 4th Dist. No. 08CA9, 2009-
Ohio-2632, at ¶ 26, fn. 3; Huckleberry at ¶ 24.
{¶88} 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
Scioto App. No. 11CA3412 43
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).
{¶89} Consequently, the jury found Pippen 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 Pippen’s assignment of error in this regard.
However, as indicated above, because Count 2 was merged with Count 1, Pippen
was not sentenced on Count 2. “A conviction consists of a finding of guilt and a
sentence.” State v. Fields, supra, at ¶ 7, citing State v. Henderson, supra, at 177-
179; State v. Obstaint, supra, at ¶ 24; accord State v. Whitfield, supra, at ¶ 12.
Because Pippen was not sentenced on Count 2, there is no conviction on Count 2
to vacate. 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 8: Possessing Criminal Tools
{¶90} 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
Scioto App. No. 11CA3412 44
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.
{¶91} 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 Pippen’s assignment of
error in this regard and vacate his conviction for Count 8.
3. Count 9: Possession of Marihuana
{¶92} The verdict form for Count 9 stated the jury had found Pippen 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,
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 Pippen was guilty of possession of
Scioto App. No. 11CA3412 45
marihuana constitutes a finding of the least degree of the offense; a minor
misdemeanor. As such, we sustain Pippen’s assignment of error in this regard.
However, as we concluded in our analysis of Count 2, because Count 9 was
merged with Count 7, Pippen was not sentenced on Count 9 and thus, there is no
conviction to vacate. Obstaint, supra, at ¶ 24.
{¶93} In rendering our decision, we are mindful of the recent holding by the
Supreme Court of Ohio in State v. Eafford, -- N.E.2d --, 2012-Ohio-2224, wherein
the Court held that a jury-verdict form finding an accused guilty of possession of
drugs “as charged in * * * the indictment” supported a conviction for possession of
cocaine, even though the jury-verdict form failed to specify cocaine. While, at first
blush, it appears that the reasoning of Eafford does not require the specific
language that we found lacking, sub judice, upon closer review we find Eafford to
be factually distinguishable. Specifically, we note that in Eafford, the verdict form
at issue at least contained the phrase “as charged in the indictment,” which in fact
specified cocaine. Here, the verdict forms contained no such clause. As such, in
the absence of specifying the degree of the offenses, or setting forth the
aggravating factors that serve as the basis for enhancing the offenses, we find the
verdict forms to be distinguishable from those in Eafford, and therefore find the
reasoning of that case to be inapplicable herein.
Scioto App. No. 11CA3412 46
{¶94} Accordingly, we remand the case to the trial court to 1) impose a
conviction for the correct level of the offense as to Count 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 sentencing: and 3) to sentence Pippen accordingly, also taking into
consideration that the major drug offender specification does not require an
additional mandatory sentence.
ASSIGNMENT OF ERROR V
{¶95} In his fifth assignment of error, Pippen argues his convictions and
sentences are erroneous. First, he contends all of the offenses should merge, as the
state failed to prove he engaged in separate conduct for each offense. Second,
Pippen believes the sentences the trial court imposed were simply too harsh and the
court did not consider the appropriate sentencing factors. As set forth in detail
above, and as we will be explained further, infra, we agree in part.
A. Merger of Allied Offenses
{¶96} When determining whether multiple offenses should have merged
under R.C. 2941.25, “[o]ur standard of review is de novo.” State v. Buckta, 4th
Dist. No. 96 CA 3, 1996 WL 668852 (Nov. 12, 1996), * 2. 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,
Scioto App. No. 11CA3412 47
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.”
{¶97} 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
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-
Scioto App. No. 11CA3412 48
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.
{¶98} “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.
{¶99} Here, Pippen’s various crimes relating to different controlled
substances are of dissimilar import and do no not merge. State v. Jones, 18 Ohio
St.3d 116, 480 N.E.2d 408 (1985), 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, 22 Ohio St. 3d 270,
490 N.E.2d 884 (1986), at syllabus. The same holds true for trafficking in multiple
controlled substances. Westbrook at ¶ 46.
Scioto App. No. 11CA3412 49
{¶100} Here, Pippen’s convictions for trafficking in oxycodone, heroin, and
marihuana do not merge with one another. Likewise, Pippen’s 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 Pippen’s fifth assignment of
error.
B. Sentencing
{¶101} First, Pippen’s 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)
was one of the offending portions. We decline to remand the case to the trial court
to consider an unconstitutional portion of a statute.
{¶102} However, we find that Pippen’s argument that his sentence was
contrary to law is meritorious. As already set forth above, when reviewing felony
sentences, this Court follows the two-step approach the Supreme Court of Ohio
outlined in State v. Kalish, supra, at ¶ 4, which requires us to first determine
whether the sentence is contrary to law, and if it is not, we then proceed to the
question of whether the sentence was an abuse of discretion. Here, however, we
Scioto App. No. 11CA3412 50
have already determined that several of Appellant’s sentences were contrary to
law.
{¶103} Specifically, we sua sponte raised an issue related to the trial court’s
imposition of a “mandatory” additional sentence on Count 1’s major drug offender
specification. Having found that the ten year sentence imposed by the trial court
was not mandatory, we found this portion of Appellant’s sentence to be contrary to
law. Additionally, after finding problems with the verdict form for Count 8, we
vacated and remanded Pippen’s conviction on this count, with instructions to the
trial court to reduce the degree of offense from a fifth degree felony to a first
degree misdemeanor. Pippen was sentenced to a twelve month prison term on this
count, which is clearly outside the range for a first degree misdemeanor, and thus,
is contrary to law.
{¶104} Further, although we also found problems with the verdict forms
related to Counts 2 and 9, because these counts were merged with Counts 1 and 7,
respectively, Pippen was not actually sentenced on these counts and thus the errors
did not affect the length of his sentences, either individually or overall. The same
is true with respect to the jury’s finding of guilt on the conspiracy charge. Not
only could Pippen not be convicted of both the principle offense and conspiracy to
commit the principle offense, in light of our conclusion that the conspiracy count
Scioto App. No. 11CA3412 51
was merged with Counts 1 and 2 for purposes of sentencing, this error did not
affect the length of his sentences, either individually or overall.
{¶105} Thus, having found these particular sentences to be contrary to law,
we find they were also an abuse of discretion. However, as set forth above, we
have already affirmed Appellant’s convictions on Counts 1, 3, 4, and 7, and we
find no error in sentencing related to these counts, with the exception of Count 1’s
major drug offender specification sentence, which we have already discussed.
{¶106} Accordingly we sustain Pippen’s fifth assignment of error, in part.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND
CAUSE REMANDED.
Kline, J., dissenting, in part.
{¶107} 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,
Scioto App. No. 11CA3412 52
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.
{¶108} 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. 11CA3412 53
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN
PART, & 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.