[Cite as State v. Deckard, 2017-Ohio-8469.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               GALLIA COUNTY

STATE OF OHIO,                 :
                               :    Case No. 16CA14
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
DUSTIN A. DECKARD,             :
                               :
    Defendant-Appellant.       :    Released: 11/01/17
_____________________________________________________________
                         APPEARANCES:

Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.

Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher,
Gallia County Assistant Prosecuting Attorney, Gallipolis, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Dustin A. Deckard appeals the judgment entry filed August 31,

2016 in the Gallia County Court of Common Pleas. Deckard was convicted

by a jury on three counts: (1) illegal conveyance of drugs onto grounds of a

detention facility, R.C. 2921.36(A)(2); (2) possession of drugs (heroin), R.C.

2925.11(A); and (3) possession of drugs (cocaine), R.C. 2925.11(A). On

appeal, Appellant asserts three assignments of error. He first argues the trial

court deprived him of his constitutional right to confrontation by admitting

into evidence a chemical laboratory report without also requiring the chemist
Gallia App. No. 16CA14                                                         2

who prepared the report to be available for cross-examination. He next

argues the trial court erred by failing to merge his convictions for illegal

conveyance into a detention facility with the convictions for possession of

drugs. He also argues there was insufficient evidence to convict him of

illegal conveyance of drugs. However, we find no merit to Appellant’s

arguments. Accordingly, we overrule his assignments of error and affirm

the judgment of the trial court.

            FACTUAL AND PROCEDURAL BACKGROUND

      {¶2} On February 29, 2016, Dustin A. Deckard was incarcerated at

the Gallia County Jail. According to the trial testimony, he was booked in

around 9:00 a.m. that day. During the evening hours, Deputy Cain noticed

an odor similar to burning plastic. Appellant was in a cell block with

approximately 8 to 10 other inmates.

      {¶3} During a search Deputy Cain discovered suspected drugs on

Appellant’s person. The substances were submitted to the Ohio Bureau of

Criminal Identification and Investigation (BCI) for analysis. A written

report obtained from BCI indicated the substances submitted contained

heroin and cocaine.

      {¶4} On June 16, 2016, Appellant was indicted on three counts: (1)

illegal conveyance of drugs onto grounds of a detention facility, in violation
Gallia App. No. 16CA14                                                        3

of R.C. 2921.36; (2) possession of drugs (heroin), in violation of R.C.

2925.11; and (3) possession of drugs (cocaine), also in violation of R.C.

2925.11(A). The first count for illegal conveyance is a felony of the third

degree. The possession counts are both fifth degree felonies. On June 23,

2016, Appellant entered not guilty pleas to all counts. Appellant was

appointed legal counsel. He was scheduled for a status conference in July

2016, and for jury trial on August 29, 2016.

      {¶5} On July 8, 2016, Appellant’s counsel was granted leave to

withdraw. The court appointed another attorney to represent him. On

August 24, 2016, the State filed a motion to continue the jury trial on the

basis of the unavailability of a witness: the chemist from the Ohio Bureau of

Criminal Investigation (BCI). The trial court denied the State’s request.

      {¶6} On August 29, 2016, prior to the beginning of trial, Appellant’s

counsel filed a motion in limine seeking exclusion of the BCI laboratory

report which identified the substances found on Appellant’s person as heroin

and cocaine. The trial court denied this motion. During trial, the court

allowed the BCI report to be admitted into evidence. At the conclusion of

trial, the jury returned guilty verdicts on all three counts.

      {¶7} On August 31, 2016, the trial court conducted Appellant’s

sentencing hearing. After hearing arguments from the parties regarding the
Gallia App. No. 16CA14                                                           4

issue of merger of allied offenses, the trial court did not merge the counts

and sentenced Appellant to a maximum and consecutive sentence of five

years.

         {¶8} This timely appeal followed. Additional facts will be set forth,

where pertinent.

                          ASSIGNMENTS OF ERROR

         “I. THE TRIAL COURT DEPRIVED DECKARD OF HIS
         CONSTITUTIONAL RIGHT TO CONFRONTATION BY
         ADMITTING INTO EVIDENCE A LABORATORY REPORT
         UNDER NOTICE-AND-DEMAND STATUTE
         (R.C.2925.51)FOR THE PROSECUTION OF A CHARGE
         NOT WITHIN CHAPTERS 2925 OR 3719 OF THE REVISED
         CODE.

         II. THE TRIAL COURT COMMITTED REVERSIBLE
         ERROR BY DECLINING TO MERGE CONVICTION FOR
         ILLEGAL CONVEYANCE OF DRUGS ONTO GROUNDS
         OF DETENTION FACILITY WITH CONVICTIONS FOR
         POSSESSION OF DRUGS.

         III. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT
         A CONVICTION FOR ILLEGAL CONVEYANCE OF
         DRUGS ONTO GROUNDS OF DETENTION FACILITY.”

                              LEGAL ANALYSIS

                       ASSIGNMENT OF ERROR ONE

         {¶9} Under the first assignment of error, Appellant argues that the

trial court committed reversible error by depriving him of his constitutional

right to confrontation. At trial, the trial court admitted Exhibit 7, a BCI
Gallia App. No. 16CA14                                                         5

laboratory report relevant to Appellant’s case, and Deputy Argabright’s

testimony regarding the report. The chemist who prepared the report for

BCI did not testify.

                         STANDARD OF REVIEW

      {¶10} The admission of evidence is within the sound discretion of the

trial court. State v. Jackson, 4th Dist. Washington No. 12CA16, 2013–Ohio–

2628, ¶ 16; State v. Dixon, 4th Dist. Scioto No. 09CA3312, 2010–Ohio–

5032, ¶ 33, citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987),

at paragraph two of the syllabus. Because a trial court's decision on a

motion in limine is a ruling to admit or exclude evidence, the standard of

review on appeal is whether the trial court committed an abuse of discretion

that amounted to prejudicial error. State v. Fowler, 10th Dist. Franklin No.

15AP1111, 2017-Ohio-438, ¶14; Gordon v. Ohio State Univ., 10th Dist.

Franklin No. 10AP-1058, 2011-Ohio-5057, at ¶ 82. An abuse of discretion

involves more than an error of judgment; it connotes an attitude on the part

of the court that is unreasonable, unconscionable, or arbitrary. Franklin Cty.

Sheriff's Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 506, 589

N.E.2d 24 (1992); Wilmington Steel Products, Inc. V. Cleveland Elec.

Illuminating Co., 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991). When

applying the abuse of discretion standard, a reviewing court is not free to
Gallia App. No. 16CA14                                                                         6

merely substitute its judgment for that of the trial court. In re Jane Doe 1, 57

Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991), citing Berk v. Matthews, 53

Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).

                                         LEGAL ANALYSIS

           {¶11} The transcript of Appellant’s trial reveals that on the morning

of trial, Appellant filed a motion in limine to exclude the laboratory report

on two grounds: (1) that it was inadmissible hearsay under Evid.R. 802; and

(2) that it was inadmissible as violative of the Confrontation Clause of the

United States and Ohio Constitutions.

           {¶12} Appellant’s trial counsel argued the State had provided the lab

report in discovery to Appellant’s prior counsel.1 Trial counsel then filed a

motion under R.C. 2925.51(C), requesting that the BCI analyst appear at

trial. However, due to the change in attorneys, and through no fault of

Appellant or his trial counsel, the request was untimely.

           {¶13} Trial counsel argued that pursuant to the statute, the trial court

had the discretion to extend the time for filing in the interest of justice. In

response, the State argued that it had intended to have the BCI analyst

appear at trial but she was pregnant and unable to travel. The State

maintained, however, that since Appellant had not made his request within


1
    Appellant’s first court-appointed counsel was permitted to withdraw from representation.
Gallia App. No. 16CA14                                                         7

the 7-day window, and the matter was in the court’s discretion, that the

motion in limine should be overruled. The trial court subsequently

overruled Appellant’s motion in limine, recognizing that trial counsel had

appeared late in the matter through no fault of his own but, nevertheless,

finding the report to be admissible as a business record.

      {¶14} We recently discussed a Confrontation Clause argument in

State v. Smith, 70 N.E.3d 150, 2016-Ohio-5062 (4th Dist.). “The Sixth

Amendment's Confrontation Clause provides, ‘In all criminal prosecutions,

the accused shall enjoy the right * * * to be confronted with the witnesses

against him * * *.’ ” Smith, supra, at 75, quoting State v. Maxwell, 139 Ohio

St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 34. The Confrontation Clause of

the Sixth Amendment is made applicable to the states by the Fourteenth

Amendment. State v. Issa, 93 Ohio St.3d 49, 752 N.E.2d 904, fn. 4 (2001).

Consequently, this constitutional right applies to both federal and state

prosecutions, but the right of confrontation in Article I, Section 10 of the

Ohio Constitution provides no greater right of confrontation than the Sixth

Amendment. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933

N.E.2d 775, ¶ 12.

      {¶15} “The United States Supreme Court has interpreted [the Sixth

Amendment right to confrontation] to mean that admission of an out-of-
Gallia App. No. 16CA14                                                          8

court statement of a witness who does not appear at trial is prohibited by the

Confrontation Clause if the statement is testimonial unless the witness is

unavailable and the defendant has had a prior opportunity to cross-examine

the witness.” Smith, supra, at 76, quoting Maxwell at ¶ 34, 9 N.E.3d 930,

citing Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354 (2004).

Crawford did not define the word “testimonial” but stated generally that the

core class of statements implicated by the Confrontation Clause includes

statements “ ‘made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at

a later trial.’ ” 541 U.S. at 52, 124 S.Ct. 1354, quoting the amicus brief of

the National Association of Criminal Defense Lawyers.

      {¶16} In Ohio, R.C. 2925.51 permits the State to submit a BCI

laboratory report as evidence in drug cases and requires the State to serve a

copy of the report on the accused. R.C. 2925.51(A) and (B). State v. Judy,

4th Dist. Highland No. 08CA3013, 2008-Ohio-5551, at ¶ 12. BCI reports

will serve as prima facie evidence of the identity and weight of the

controlled substance unless the defendant, within seven days of receiving the

State's notice of intent to submit the report, demands the testimony of the

person who signed the report. R.C. 2925.51(C). State v. O'Connor, 12th

Dist. Fayette No. CA2007-01-005, 2008-Ohio-2415, at ¶ 24.
Gallia App. No. 16CA14                                                         9

      {¶17} At trial during Deputy Argabright’s testimony, trial counsel

approached the bench and renewed his objection to the admission of the BCI

laboratory report. The trial court again overruled the objection. Deputy

Argabright then identified Exhibit 7, the BCI chemist’s laboratory report,

and testified that the report was a true and accurate copy of the original, kept

in the regular course of business activity conducted at Ohio BCI. Argabright

proceeded to testify that the laboratory report listed the suspected drugs

submitted to Ohio BCI as follows: Item One was found to contain .49 grams

of heroin and Item Two was found to contain .33 grams of cocaine.

Argabright also testified Jessica Kaiser was the BCI technician who signed

the report and reached the scientific conclusions contained in the report.

      {¶18} In Judy, the appellant contended that she was deprived of her

right of confrontation by the improper admission of testimonial evidence.

Specifically, Judy questioned whether a BCI lab report may be admitted as

evidence in the absence of expert in-court testimony from the lab analyst.

Judy relied on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004),

and State v. Smith, 3rd Dist. Allen No. 1-05-39, 2006-Ohio-1661, in support

of her contention that such lab reports are testimonial in nature. However, as

a result of Judy’s failure to object to the admission of the report on

Confrontation Clause grounds, it was necessary for us to determine only
Gallia App. No. 16CA14                                                                                   10

whether the admission of the report amounted to plain error.2 We ultimately

concluded that the trial court's admission of the BCI report did not constitute

error, plain or otherwise.

         {¶19} In Judy, we cited a Twelfth District Court which held that a

drug analysis report completed by BCI does not constitute “testimonial”

evidence under Crawford and therefore, the defendant's Confrontation

Clause rights under Crawford were not violated by the report's admission

into evidence. Id. at 17. See State v. Malott, 12th Dist. Butler Nos. CA2007-

02-006, CA2007-02-007, CA2007-02-008, 2008-Ohio-2114, ¶ 15. The

Malott court cited the Supreme Court of Ohio’s decision in State v. Crager,

116 Ohio St.3d 369, 2007-Ohio-684, that the admission of DNA reports

without the testimony of the analyst who prepared the report did not violate

the defendant's Confrontation Clause rights under Crawford since the reports

fell within the business records exception to the hearsay rule of Evid.R.

803(6), and thus were not “testimonial” evidence under Crawford. Malott at




2
  Evid.R. 103(A)(1) provides that a claim of error may not be predicated upon a ruling that admits or
excludes evidence unless a substantial right of the party is affected and, if the ruling is one admitting the
evidence, the opponent of the evidence raises a timely objection to the evidence, stating the specific ground
of objection, unless the ground of objection is apparent from context. Id., at ¶ 15. Cf. State v. Smith, 3rd
Dist. Allen No. 1-05-39, 2006-Ohio-1661, at ¶ 8 (while defendant did not demand the testimony of
laboratory technicians who prepared report, he did raise an objection at trial to the report's admission on
Confrontation Clause grounds). See State v. Urbina, Defiance App. No. 4-06-21, 2008-Ohio-1013, ¶ 19, 35
(Third Appellate District finding that failure to object at trial to the admission of a laboratory report on
Confrontation Clause grounds waived all but plain error).
Gallia App. No. 16CA14                                                                             11

¶ 13. In Judy, we concluded that BCI lab reports are nontestimonial in

nature and their admission does not violate the right of confrontation.

        {20} Judy was decided by our court in 2008. Subsequently, it was

held that the contents of a laboratory report is testimonial in nature when its

conclusion is prima facie evidence of an element of the offense. Melendez–

Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, (2009); Bullcoming v.

New Mexico, 564 U.S. 647, 663–664, 131 S.Ct. 2705, 2716, (2011). See

State v. Hartman, 64 N.E.3d 519, 2016-Ohio-2883, at ¶ 82 (2nd Dist.). On

the basis of Melendez–Diaz, the United States Supreme Court vacated, but

did not reverse, the Crager decision.3

        {¶21} In this case, at the conclusion of trial when the State rested,

Appellant’s trial counsel made a Crim.R. 29 motion for acquittal and after

hearing argument, the trial court denied the motion. The State then moved

to admit the State’s 7 exhibits presented and defense counsel posed no

objection to admission of any of the exhibits, including the BCI laboratory

report.

        {¶22} We reiterate that counsel originally objected to admission of the

laboratory report via a motion in limine. “A motion in limine is a means of

raising objection to an area of inquiry to prevent prejudicial questions and
3
 See Crager v. Ohio, 557 U.S. 930, 129 S.Ct. 2856 (2009). The United States Supreme Court ordered that
Crager be reconsidered in light of Melendez–Diaz.
Gallia App. No. 16CA14                                                          12

statements until the admissibility of the questionable evidence can be

determined during the course of the trial.” Mender v. Chauncey, 41 N.E.3d

1289, 2015-Ohio-4105 (4th Dist.), ¶14, quoting Independent State Bank of

Ohio v. Hartzell, 4th Dist. Washington App. No. 90CA02, 1991 WL 2197,

*2 (Jan. 7, 1991). The purpose of a motion in limine is to avoid injection

into the trial of matters which are irrelevant, inadmissible and prejudicial.

State v. French, 72 Ohio St.3d 446, 449, 650 N.E.2d 887 (1995). And,

“Ohio law is clear * * * that a ruling on a motion in limine may not be

appealed and that objections to the introduction of testimony or statements

of counsel must be made during the trial to preserve evidentiary rulings for

appellate review.” State v. Gavin, 4th Dist. Scioto No. 13CA3592, 2015-

Ohio-2996, at ¶ 22; Gable v. Gates Mills, 103 Ohio St.3d 449, 2004–Ohio–

5719, 816 N.E.2d 1049, ¶ 34; State v. Brown, 38 Ohio St.3d 305, 528 N.E.2d

523 (1988), paragraph three of the syllabus (“A denial of a motion in limine

does not preserve error for review. A proper objection must be raised at trial

to preserve error”); State v. Hambrick, 4th Dist. Ross No. 11CA3294, 2012–

Ohio–5139, ¶ 12.

      {¶23} While we observe that Appellant filed the motion in limine and

renewed his objection at trial, another factor to be considered in our analysis

herein is that Appellant did not object to the admission of the report at the
Gallia App. No. 16CA14                                                           13

time exhibits were admitted. “Generally, when a party fails to renew an

objection at the time exhibits are admitted into evidence, that party waives

the ability to raise the admission as error on appeal, unless plain error is

shown.” In re. S.L., 56 N.E.3d 1026, 2016-Ohio-5000 (3rd Dist.), at ¶ 37,

quoting Odita v. Phillips, 10th Dist. Franklin No. 09AP–1172, 2010-Ohio-

4321, ¶ 56, citing Nicula v. Nicula, 8th Dist. Cuyahoga No. 84049, 2009-

Ohio-2114. Notice of plain of error under Crim.R. 52 may be taken if, upon

review of the record, the record reveals that such error resulted in a manifest

miscarriage of justice.” State v. Layne, 4th Dist. Highland No. 11CA17,

2012-Ohio-1627, ¶ 7, quoting State v. Thrower at 376; citing State v. Adams,

62 Ohio St.2d 151, 154–154, 404 N.E.2d 144 (1980).

       {¶24} “[F]or 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.” Layne, supra, at 8, quoting State v. Spires, 4th Dist. Gallia No.

10CA10, 2011–Ohio–3661, at ¶ 14; citing State v. Barnes, 94 Ohio St.3d 21,

27, 2002–Ohio–68, 759 N.E.2d 1240. 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
Gallia App. No. 16CA14                                                       14

prevent a manifest miscarriage of justice.” Id., quoting State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), at paragraph three of the syllabus.

      {¶25} We do not find that error, plain or otherwise, occurred here.

Appellant’s request was not timely filed and the court, in its discretion, did

not extend the time to allow for a late filing. Furthermore, Appellant

apparently conceded the drugs found on his person were cocaine and heroin,

and he abandoned his argument regarding the possession counts. The trial

transcript reveals Appellant’s trial counsel made these comments during his

closing argument:

      “The burden is on the State here to prove each and every
      element of this case and yes, from the beginning I stated they
      had a strong case for the possession. And in fact I think we
      caught Mr. Deckard red-handed with, with the drugs on him.
      That’s, that’s the case. But the third charge, Count 1, which is
      the illegal conveyance into a detention facility, the only
      evidence they have is the possession. The possession of drugs.
      ***

      As I stated, this whole case is built on assumptions. We’ve got
      to assume that because he had drugs, he’s the one, he’s the only
      one that could have brought them in after we’ve heard
      testimony that there’s all these other people.* * *

      Look at the pictures, look at how big the Pay…Pay Day
      wrapper was and the other drugs that were found in that besides
      the heroin and cocaine. There’s, there’s multiple items here.
      ***

      As I stated from the beginning, we’re not, we’re not trying to
      play hide the ball. Mr. Deckard had the drugs on him red-
      handed. We’re just asking you to come back with a not guilty
Gallia App. No. 16CA14                                                      15

      verdict for the illegal conveyance because there is a lack of
      evidence and the State will not be, meet its burden beyond a
      reasonable doubt.”

      {¶26} In fact, during closing rebuttal, the State began:

      “So from what I take from the defense’s closing statement is
      that the State of Ohio has um, presented enough evidence, even
      in the defense counsel’s mind that you should convict and find
      guilty on Count 2 as well as guilty on Count 3 for possession of
      cocaine and heroin. So with those two out of the way now, we
      move onto, to Count 1.”

      {¶27} Appellant’s counsel made no objection to this characterization

of his closing argument. Given Appellant’s apparent decision to concede he

possessed cocaine and heroin and to contest only the illegal conveyance

count, we do not find that admission of the BCI laboratory report constituted

plain error. For the foregoing reasons, we find no merit to Appellant’s first

assignment of error and it is hereby overruled.

                    ASSIGNMENT OF ERROR THREE

      {¶28} For ease of analysis, we next consider Appellant’s third and

final assignment of error. Appellant was convicted of Count 1, illegal

conveyance of drugs into a detention facility. Appellant, however, contends

that there was no evidence of the material element, “conveyance,” presented

at his trial. For the following reasons, we disagree.
Gallia App. No. 16CA14                                                          16

                         STANDARD OF REVIEW

       {¶29} A claim of insufficient evidence invokes a due process concern

and raises the question of whether the evidence is legally sufficient to

support the verdict as a matter of law. State v. Dunn, 4th Dist. Jackson No.

15CA1, 2017-Ohio-518, ¶ 13; State v. Wickersham, 4th Dist. Meigs No.

13CA10, 2015-Ohio-2756, at ¶ 22; State v. Thompkins, 78 Ohio St.3d 380,

386, 678 N.E.2d 541 (1997). When reviewing the sufficiency of the

evidence, our inquiry focuses primarily upon the adequacy of the evidence;

that is, whether the evidence, if believed, reasonably could support a finding

of guilt beyond a reasonable doubt. Thompkins, syllabus. The standard of

review is whether, after viewing the probative evidence and inferences

reasonably drawn therefrom in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,

99 S.Ct. 2781 (1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d

492 (1991). Furthermore, a reviewing court is not to assess “whether the

state's evidence is to be believed, but whether, if believed, the evidence

against a defendant would support a conviction.” Thompkins, 78 Ohio St.3d

at 390 (Cook, J., concurring).
Gallia App. No. 16CA14                                                         17

       {¶30} Thus, when reviewing a sufficiency-of-the-evidence claim, an

appellate court must construe the evidence in a light most favorable to the

prosecution. Dunn, supra, at 14; Wickersham, supra, at 23; State v. Hill, 75

Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d

465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a

conviction on a sufficiency-of-the-evidence claim unless reasonable minds

could not reach the conclusion that the trier of fact did. State v. Tibbetts, 92

Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d

460, 484, 739 N.E.2d 749 (2001).

                             LEGAL ANALYSIS

      {¶31} In support of his argument that there was insufficient evidence

that he conveyed drugs into the Gallia County Jail, Appellant points out that

while he was found to be in possession of certain substances, there were 8-

10 other inmates housed in the same area. Appellant argues there is no

investigatory evidence regarding the other inmates, and no investigatory

evidence regarding visitors the other inmates may have received. Appellant

further asserts there is no evidence regarding the circumstances of his arrest

which would provide him with the opportunity to conceal substances for

future conveyance.
Gallia App. No. 16CA14                                                        18

      {¶32} R.C. 2921.36(A)(2) provides: “No person shall knowingly

convey, or attempt to convey, onto the grounds of a detention facility * * *

(2) Any drug of abuse, as defined in section 3719.011 of the Revised Code.”

Appellant was indicted for possession of heroin, a Schedule I controlled

substance, in violation of R.C. 2925.11(A), and also for possession of

cocaine, a Schedule II controlled substance, in violation of R.C. 2925.11(A).

Appellant did not contest the finding that the Gallia County Jail constituted a

detention facility or that the drugs alleged in the indictment constituted drugs

of abuse as defined by the Revised Code.

      {¶33} We begin by setting forth the relevant testimony. Nicholas

Cain, a corrections officer at the Gallia County Jail, testified he reported to

work at 4:00 p.m. on February 29, 2016. Appellant had been booked into

the jail at 9:00 a.m. on February 29th. To Officer Cain’s knowledge, an anal

cavity search warrant was not requested or conducted at the time Appellant

was booked.

      {¶34} While Officer Cain was performing routine duties, he noticed

an odor of burning plastic in B-Block. There were approximately 8 other

inmates housed in B-Block on that date. He and another corrections officer,

Debra Smith, handcuffed the inmates to bars for the officers’ own safety,
Gallia App. No. 16CA14                                                      19

and searched each inmate individually. Officer Cain’s searches of the

inmates yielded nothing until he came to Appellant.

      {¶35} Officer Cain testified he performed an initial pat-down on

Appellant and felt something. He retrieved a baggie with an unknown

substance from Appellant’s buttocks. Officer Cain handed the baggie

through the bars to Officer Smith, who preserved it as evidence and turned it

over to Sergeant Jason Brown. Sgt. Brown then preserved the chain of

custody and eventually forwarded the baggie to the BCI Task Force

technician. Officer Cain identified Appellant in court and Exhibit 1, the

baggie.

      {¶36} He further testified once they finished the search, other officers

arrived to assist. The officers searched the B-Block and found no other

drugs or weapons there. Officer Cain took no further part in the

investigation.

      {¶37} On cross-examination, Officer Cain testified every inmate is

initially patted down and then strip-searched when they are booked into the

jail. He acknowledged the Gallia County Jail has video cameras above the

toilets and showers. He admitted there was no video evidence against

Appellant, and that no lighter was recovered. Officer Cain also admitted

that his report did not list the names of the other inmates or witnesses
Gallia App. No. 16CA14                                                       20

involved in the incident and he did not check the visitor’s log pertaining to

the other inmates. He acknowledged there had been issues and ongoing

investigations with items smuggled into the jail on food trays.

      {¶38} On redirect, Officer Cain clarified that the camera systems in

the toilet and shower areas do not tape inmates as they shower or use the

restroom. The camera systems do not preserve evidence of the inmates

performing these personal functions. He also clarified that the reason he did

not name other inmates in B-Block in his report was because Appellant was

the only person on which drugs were found. To his knowledge, the defense

did not request video evidence or visitor log evidence.

      {¶39} Officer Debra Smith next testified that whenever inmates are

booked into the jail, they are strip-searched and given jail clothing and

necessary toiletries. She was working on February 29, 2016, and there were

approximately 8-10 inmates housed in B-Block. She also testified during

her shift she smelled burning plastic. They handcuffed each inmate to the

cell bars. Officer Cain went into the block himself and patted down the

inmates and searched them from behind the bars while Officer Smith

remained in front of the inmates.

      {¶40} Officer Smith testified that when Officer Cain searched

Appellant, he “pulled Dustin Deckard back, pulled the back of his pants out
Gallia App. No. 16CA14                                                     21

and he really had a funny look on his face. Um, he looked down, he reached

into his pants and he pulled out a big plastic bag. Uh, he found this between

Mr. Deckard’s butt cheeks.” Officer Smith verified that Officer Cain handed

the baggie to her and Officer Cain then proceeded to finish the search of the

last inmate. She testified after she and Officer Cain opened the baggie, they

contacted other officers and turned the evidence and the matter over to Sgt.

Brown.

      {¶41} Officer Smith also testified that on numerous occasions,

inmates bring contraband inside the anal or vaginal cavities. Gallia county

officers are only allowed to do general patdown searches. They are required

to get a search warrant and transport inmates to the hospital to do body

cavity searches. Officer Smith’s cross-examination testimony mirrored

Officer Cain’s. She acknowledged that the Prosecutor’s Office, to her

knowledge, did not request video evidence. She testified the food trays are

searched upon arrival. On redirect, Officer Smith acknowledged that any

item brought into the jail through an inmate’s anal cavity would be

unbeknownst to the officers until it was outside of the body cavity.

      {¶42} Deputy Jason Brown testified he is an evening shift patrol

supervisor with the Gallia County Sheriff’s Office. On February 29, 2016,

he was working regular patrol when he received information from jail staff
Gallia App. No. 16CA14                                                       22

about an issue in the jail. When he arrived at the jail, Officers Cain and

Smith relayed the details of the incident and the discovery of the baggie on

Appellant’s person. At that point, Deputy Brown took custody of the

evidence and secured it in the evidence room. On cross-examination,

Deputy Brown admitted that to his knowledge, no interviews of the other

inmates were conducted.

      {¶43} Here, the evidence regarding the material element of

“conveyance” is clearly only circumstantial. However, “[D]irect evidence of

a fact is not required. Circumstantial evidence * * * may * * * be more

certain, satisfying, and persuasive than direct evidence.” Dunn, supra, at 25,

quoting State v. Grube, 2013–Ohio–692, 987 N.E.2d 287 (4th Dist.), ¶ 30,

quoting State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990), citing

Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 10,

(1960), citing Rogers v. Missouri Pacific RR Co, 352 U.S. 500–508, fn. 17,

77 S.Ct. 443, 449, fn. 17, (1957). Even murder convictions and death

sentences can rest solely on circumstantial evidence. Grube, supra, citing

State v. Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d 394 (1987); State v.

Nicely, 39 Ohio St.3d 147, 151, 529 N.E.2d 1236, 1239 (1988). While the

evidence of Appellant’s “conveyance” is circumstantial, we find the
Gallia App. No. 16CA14                                                         23

evidence, if believed, reasonably supports a finding of guilty beyond a

reasonable doubt.

       {44} The guilty verdict here is based on direct and circumstantial

evidence. Both Officers Cain and Smith testified that Appellant would have

been patted down and searched upon booking on February 29th at 9:00 a.m.

and both officers further testified that although strip-searches are also

performed, they are not allowed to do body cavity searches without a

warrant. Appellant’s anal cavity was not searched. Later in the day,

Officers Cain and Smith investigated a burning smell, searched 8-10

inmates, and found a baggie containing cocaine and heroin located only on

Appellant’s person, in his buttocks. From this testimony, the jury obviously

inferred circumstantial evidence that Appellant knowingly conveyed the

drugs into the jail via his anal cavity, and that he evaded detection of the

drugs during the booking process.

      {45} For the foregoing reasons, after reviewing the probative evidence

and inferences reasonably drawn therefrom in a light most favorable to the

prosecution, any rational trier of fact could have found the essential element

of “conveyance” of drugs into a detention facility proven beyond a

reasonable doubt. As such, we find no merit to Appellant’s third assignment

of error and it is hereby overruled.
Gallia App. No. 16CA14                                                        24

                     ASSIGNMENT OF ERROR TWO

      {¶46} Lastly, we consider Appellant’s second assignment of error.

Appellant contends he was subjected to Double Jeopardy by the imposition

of multiple punishments upon him for a single act. Appellant argues that the

trial court committed reversible error by declining to merge the illegal

conveyance violation with the drug possession violations.

                         STANDARD OF REVIEW

       {¶47} Appellate courts conduct a de novo review of a trial court's

R.C. 2941.25 merger determination. State v. Pickett, 4th Dist. Athens No.

15CA13, 2016-Ohio-4593, ¶ 53. State v. Williams, 134 Ohio St.3d 482,

2012–Ohio–5699, 983 N.E.2d 1245, ¶ 28; accord State v. Neal, 4th Dist.

Hocking No. 15CA1, 2016–Ohio–64, ¶ 52. We therefore afford no

deference to the trial court's legal conclusion, but instead, independently

determine whether the established facts satisfy the applicable legal standard.

Williams at ¶¶ 25–27 (explaining de novo standard in merger context and

stating that fact-finder determines facts and appellate court determines

whether facts satisfy applicable legal standard).

                             LEGAL ANALYSIS

      {¶48} Appellant contends, assuming for argument that he conveyed

drugs within himself into the Gallia County Jail, his conduct was a single
Gallia App. No. 16CA14                                                        25

act, committed with a single state of mind. However, he asserts that to

punish him for both possession and illegal conveyance amounts to imposing

multiple punishments upon him for one act and is contrary to protection

from Double Jeopardy. The Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution provides that no person shall

“be subject for the same offense to be twice put in jeopardy of life or limb,”

and this protection applies to Ohio citizens through the Fourteenth

Amendment and is additionally guaranteed by Article I, Section 10 of the

Ohio Constitution. State v. Neal, 4th Dist. Hocking No. 50, 57 N.E.3d 272,

2016-Ohio-64 (4th Dist.), at ¶ 50. This constitutional protection prohibits

multiple punishments for the same offense. North Carolina v. Pearce, 395

U.S. 711, 717, 89 S.Ct. 2072, (1969), overruled on other grounds, Alabama

v. Smith, 490 U.S. 794, 109 S.Ct. 2201 (1989).

      {¶49} “R.C. 2941.25 codifies the protections of the Double Jeopardy

Clause of the Fifth Amendment to the United States Constitution and

Section 10, Article I of the Ohio Constitution, which prohibits multiple

punishments for the same offense.” Pickett, supra, at 54, quoting State v.

Underwood, 124 Ohio St.3d 365, 2010–Ohio–1, 922 N.E.2d 923, ¶ 23;

accord State v. Miranda, 138 Ohio St.3d 184, 2014–Ohio–451, 5 N.E.3d
Gallia App. No. 16CA14                                                        26

603; State v. Washington, 137 Ohio St.3d 427, 2013–Ohio–4982, 999

N.E.2d 661, ¶ 11. 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.”

      {¶50} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d

892, the Supreme Court of Ohio instructed that courts conduct a three-part

inquiry to determine whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25: “(1) Were the offenses dissimilar in

import or significance? (2) Were they committed separately? and (3) Were

they committed with separate animus or motivation? Pickett, supra, at 55.

An affirmative answer to any of the above will permit separate convictions.

Id. The conduct, the animus, and the import must all be considered.” Id.

quoting State v. Earley, 2015–Ohio–4615, ¶ 12, citing State v. Ruff, 143

Ohio St.3d 114, 2015–Ohio–995, 34 N.E.3d 892, ¶ 31 and paragraphs one,

two, and three of the syllabus.
Gallia App. No. 16CA14                                                                                 27

        {¶51} Offenses are of dissimilar import “if they are not alike in their

significance and their resulting harm.” Pickett, at 56, quoting Ruff at ¶ 21.

Thus, “two or more offenses of dissimilar import exist within the meaning of

R.C. 2941.25(B) when the defendant's conduct constitutes offenses

involving separate victims or if the harm that results from each offense is

separate and identifiable.” Id. at ¶ 23. We further note that the defendant

bears the burden to establish that R.C. 2941.25 prohibits multiple

punishments. State v. Washington, 137 Ohio St.3d 427, 2013–Ohio–4982,

999 N.E.2d 661, ¶ 18, citing State v. Mughni, 33 Ohio St.3d 65, 67, 514

N.E.2d 870 (1987). In this case, the trial court stated as follows:

        “Further as to the offenses being committed separately the
        Court finds that the offenses of possession were committed
        separately from the offense of illegal conveyance. Mr. Deckard
        had to have committed the possession offenses prior to the
        offense of uh, illegally conveying them into the jail. Also as to
        the separate possession offenses one involved heroin and the
        other one involved cocaine. As such, the animus for one was
        the possession of heroin and the animus for the other was the
        possession of cocaine. Based on the above the Court finds that
        the offenses of illegal conveyance of drugs onto a detention
        facility, possession of drugs, the heroin and possession of
        drugs, the cocaine do not merge for purposes of sentencing.”4

4
  At sentencing, the trial court referenced State v. Johnson, 128 Ohio St.3d 53, 2010-Ohio-6314, 942
N.E.2d 1061. The lead opinion in Johnson stated that R.C. 2941.25(A) requires the sentencing court to first
determine “whether it is possible to commit one offense and commit the other with the same conduct.”
(Emphasis sic.) Id. at ¶ 48. If the defendant's conduct constituting commission of one offense constitutes
commission of the other, then the offenses are of similar import. Id. The court must then determine whether
the offenses were committed by the same conduct. Id. at ¶ 49. “If the answer to both questions is yes, then
the offenses are allied offenses of similar import and will be merged.” Id. at ¶ 50. However, in State v.
Jackson, 149 Ohio St.3d 155, 2016-Ohio-5488, 73 N.E.3d 414, the Supreme Court of Ohio stated at ¶ 127:
“More recent decisions of this court, including the decision in State v. Ruff, 143 Ohio St.3d 114, 2015-
Gallia App. No. 16CA14                                                                                 28


        {¶52} At sentencing and on appeal, Appellant’s counsel argued the

conduct constituting the possession charges and conveyance did occur at the

same time and place. We agree with the trial court’s conclusion that the

separate possession convictions, one for heroin and one for cocaine, do not

merge for purposes of sentencing. Contemplating the third question set forth

in Ruff, the possession convictions were committed with a separate animus.

Therefore, they are not allied offenses of similar import. We need not

consider the other questions posed by Ruff. The legislature clearly intended

that possession of different drug groups constitutes different offenses. State

v. Rice, 5th Dist. Licking No. 16CA87, 2017-Ohio-1504, ¶ 12, quoting State

v. Westbrook, 4th Dist. Scioto No. 09CA3277, 2010-Ohio-2692, ¶ 43.

However, the trial court viewed the possession conduct as separate conduct

having occurred prior to the offense of illegally conveying them into the jail.

Given the circumstantial evidence presented at trial, from which the jury

inferred that Appellant conveyed the drugs into the jail via his anal cavity,

we find this reasoning to be correct.

        {¶53} Merriam Webster’s Online Dictionary defines “convey” in

several ways: “* * * [T]o bear from one place to another; to move: to carry



Ohio-995, 34 N.E.3d 892, ‘have rendered the analysis of the Johnson lead opinion largely obsolete.’ State
v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 11.”
Gallia App. No. 16CA14                                                            29

away secretly: to transfer or deliver: to cause to pass from one place or

person to another * * *.” www. merriam-webster.com. 2017 Merriam

Webster, Inc. The inference arising at trial was that Appellant possessed the

two distinct drugs outside of the jail. His “conveyance” or “movement” of

the drugs into the jail facility constituted a separate and distinct action. In

this way, the conveyance offense was committed separately and with a

separate animus, affirmative answers to both the second and third questions

prescribed by Ruff.

      {¶54} Our research did not yield other cases in which the failure to

merge a possession conviction into an illegal conveyance conviction was

challenged. In reviewing cases involving appeal of other illegal conveyance

convictions, we observe the State provided evidence in many cases that upon

booking, defendants were questioned as to whether they were carrying

contraband and further, advised if they were later found to be carrying

contraband, they would be subject to prosecution for the offense of illegal

conveyance. In this manner, a distinct and separate break in the conduct

would be obvious. However, the fact that the record herein does not contain

evidence of such questioning, or evidence of further advisal to Appellant of

a potential additional charge for any conveyance of contraband, does not

change the result.
Gallia App. No. 16CA14                                                       30

      {¶55} For the foregoing reasons, we find neither of Appellant’s

possession convictions must be merged into the illegal conveyance

conviction as allied offenses for purposes of sentencing. As such, we find

no merit to Appellant’s second assignment of error and it is hereby

overruled. Accordingly, the judgment of the trial court is affirmed.

                                                JUDGMENT AFFIRMED.
Gallia App. No. 16CA14                                                       31

Harsha, J. concurring:

      {¶56} Because the revised principal opinion incorporates the gist of

my tentative concurring opinion, I now concur in judgment and opinion.
Gallia App. No. 16CA14                                                         32

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Gallia 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.

Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs with Concurring Opinion.

                                        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.
