[Cite as State v. Brown, 2014-Ohio-2493.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :       JUDGES:
                                            :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                  :       Hon. Sheila G. Farmer, J.
                                            :       Hon. Craig R. Baldwin, J.
-vs-                                        :
                                            :
SHANE BROWN                                 :       Case No. 13CA79
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2012-CR-744H




JUDGMENT:                                           Affirmed/Reversed in Part and
                                                    Remanded




DATE OF JUDGMENT:                                   June 9, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JILL M. COCHRAN                                     ROBERT GOLDBERGER
38 South Park Street                                10 West Newlon Place
Mansfield, OH 44902                                 Mansfield, OH 44902
Richland County, Case No. 13CA79                                                        2

Farmer, J.

      {¶1}   On October 6, 2012, James McConnell permitted appellant, Shane Brown,

to test drive a vehicle he was selling. The vehicle was returned with damage to the rear

bumper. As a result, Mr. McConnell filed a police report. Shelby Police Officer John

Guisinger and Sergeant David Mack went to appellant's home to investigate the

incident. Appellant admitted to hitting a pole at a gas station and leaving the scene with

no intention of reporting the accident. Appellant was arrested and during the search of

his person, the officers discovered prescription pills (Alprazolam aka Xanax) and

$3,597.00.

      {¶2}   On November 13, 2012, the Richland County Grand Jury indicted

appellant on one count of possession of a Schedule IV drug in violation of R.C. 2925.11

and one count of trafficking in violation of R.C. 2925.03. A jury trial commenced on April

15, 2013. The jury found appellant guilty as charged. By sentencing entry filed April 30,

2013, the trial court sentenced appellant to one year on each count, to be served

concurrently with each other and to sentences imposed in another case, Case No. 12-

CR-692H.

      {¶3}   Appellant filed an appeal and this matter is now before this case for

consideration. Assignments of error are as follows:

                                            I

      {¶4}   "APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL."

                                            II

      {¶5}   "THE TRIAL COURT COMMITTED PLAIN ERROR BY SENTENCING

APPELLANT TO BOTH POSSESSION OF AND TRAFFICKING IN ALPRAZOLAM."
Richland County, Case No. 13CA79                                                      3


                                              I

      {¶6}   Appellant claims he was denied the effective assistance of trial counsel

because his counsel failed to file a motion to suppress the items seized from his person

upon his arrest as the arrest was unlawful. We disagree.

      {¶7}   The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:



             2. Counsel's performance will not be deemed ineffective unless and

      until counsel's performance is proved to have fallen below an objective

      standard of reasonable representation and, in addition, prejudice arises

      from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

      O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

      668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

             3. To show that a defendant has been prejudiced by counsel's

      deficient performance, the defendant must prove that there exists a

      reasonable probability that, were it not for counsel's errors, the result of

      the trial would have been different."



      {¶8}   Officer Guisinger and Sergeant Mack went to appellant's home to

investigate a reported hit/skip accident at a gas station. Upon questioning, appellant

admitted that he had hit a pole and left the scene and "he had no intention of reporting

it." T. at 295, 307. The officers placed appellant under arrest and conducted a search
Richland County, Case No. 13CA79                                                        4


of his person whereupon they found the aforementioned pills and money. T. at 295-

296, 307-308.    The police did not have a warrant at the time of the arrest and

subsequent search.

      {¶9}   Appellant was not charged with a hit/skip violation. Two applicable code

sections based upon the facts of this case are R.C. 4549.021 and 4549.03.             R.C.

4549.021 governs duty to stop after accident occurring on property other than public

highways and states the following in pertinent part:



             (A) In case of accident or collision resulting in injury or damage to

      persons or property upon any public or private property other than public

      roads or highways, due to the driving or operation thereon of any motor

      vehicle, the person driving or operating the motor vehicle, having

      knowledge of the accident or collision, shall stop, and, upon request of the

      person injured or damaged, or any other person, shall give that person the

      driver's or operator's name and address, and, if the driver or operator is

      not the owner, the name and address of the owner of that motor vehicle,

      together with the registered number of that motor vehicle, and, if available,

      exhibit the driver's or operator's driver's or commercial driver's license.

             If the owner or person in charge of the damaged property is not

      furnished such information, the driver of the motor vehicle involved in the

      accident or collision, within twenty-four hours after the accident or

      collision, shall forward to the police department of the city or village in

      which the accident or collision occurred or if it occurred outside the
Richland County, Case No. 13CA79                                                          5


       corporate limits of a city or village to the sheriff of the county in which the

       accident or collision occurred the same information required to be given to

       the owner or person in control of the damaged property and give the date,

       time, and location of the accident or collision.

              (B) Whoever violates division (A) of this section is guilty of failure to

       stop after a nonpublic road accident, a misdemeanor of the first degree.



       {¶10} R.C. 4549.03 governs motor vehicle accident resulting in damage to realty

and states the following in pertinent part:



              (A) The driver of any vehicle involved in an accident resulting in

       damage to real property, or personal property attached to real property,

       legally upon or adjacent to a public road or highway immediately shall stop

       and take reasonable steps to locate and notify the owner or person in

       charge of the property of that fact, of the driver's name and address, and

       of the registration number of the vehicle the driver is driving and, upon

       request and if available, shall exhibit the driver's or commercial driver's

       license.

              If the owner or person in charge of the property cannot be located

       after reasonable search, the driver of the vehicle involved in the accident

       resulting in damage to the property, within twenty-four hours after the

       accident, shall forward to the police department of the city or village in

       which the accident or collision occurred, or if it occurred outside the
Richland County, Case No. 13CA79                                                           6


       corporate limits of a city or village to the sheriff of the county in which the

       accident or collision occurred, the same information required to be given

       to the owner or person in control of the property and give the location of

       the accident and a description of the damage insofar as it is known.

              (B) Whoever violates division (A) of this section is guilty of failure to

       stop after an accident involving the property of others, a misdemeanor of

       the first degree.



       {¶11} Appellant's actions as identified by the police officers place the offenses

under the category of "misdemeanors." "As a general rule, an officer may not make a

warrantless arrest for a misdemeanor unless the offense is committed in the officer's

presence." State v. Henderson, 51 Ohio St.3d 54, 56 (1990). R.C. 2935.03 governs

arrest and detention until warrant can be obtained.          Subsection (A)(1) states the

following in pertinent part: "A***municipal police officer***shall arrest and detain, until a

warrant can be obtained, a person found violating, within the limits of the political

subdivision***a law of this state, an ordinance of a municipal corporation, or a resolution

of a township."

       {¶12} The question is whether any misdemeanor was committed in the officers'

presence.

       {¶13} In its brief, the state acknowledged the general rule and R.C. 2935.03(A),

but argued "an exception exists where, from the surrounding circumstances, including

admissions by the defendant, the officer is able to reasonably conclude that an offense

has been committed. See State v. Stacy (1983), 9 Ohio App.3d 55, 9 OBR 74, 458
Richland County, Case No. 13CA79                                                        7

N.E.2d 403, paragraph two of the syllabus." Appellant's Brief at 9, quoting State v.

Reymann, 55 Ohio App.3d 222, 224 (9th Dist.1989).

       {¶14} From the limited record relative to the circumstances surrounding

appellant's arrest, we find appellant's admission to the hit/skip and his definitive

statement that he was not going to report the accident in violation of R.C. 4549.021 lead

to the conclusion that the statute was violated in the officers' presence. We find it was

not necessary to wait 24 hours to see if appellant was going to report the accident.

       {¶15} Even if a motion to suppress could have been granted based upon an

illegal arrest, a violation of R.C. 2935.03(A)(1) does not invoke the exclusionary rule as

argued by the state in its brief at 12-14:



                The question in applying the exclusionary rule is whether the

       Appellant's constitutional rights were violated.     If one considers the

       warrantless arrest of the Appellant to be a seizure against the Fourth

       Amendment, then the question is whether it was supported by probable

       cause.

                ***

                In this case, there was probable cause; therefore, the Appellant's

       constitutional rights were not violated by his seizure. The officers were

       aware that there was a hit-skip incident. The Appellant was identified by

       the victim as the driver of the vehicle and by a witness who viewed the

       accident as the driver of the vehicle who struck the pole and then drove

       off. The Appellant admitted to the accident and that he intended not to
Richland County, Case No. 13CA79                                                       8


       report the same.      Since there was not a violation of the Appellant's

       constitutional rights, the exclusionary clause would not work to exempt the

       evidence in question, even if the arrest in question were invalid.



       {¶16} We agree with the state's argument. See, City of Kettering v. Hollen, 64

Ohio St.2d 232, 235 (1980) ("the fruits of the arrest of the defendant, based on probable

cause but unauthorized under existing state law, are not suppressible solely because of

the fact of the arrest in Dayton by a Kettering police officer.")

       {¶17} Upon review, we do not find any prejudice to appellant.

       {¶18} Assignment of Error I is denied.

                                              II

       {¶19} Appellant claims his convictions for possession and trafficking Alprazolam

should have been merged. We agree.

       {¶20} R.C. 2941.25 governs multiple counts and states the following:



              (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
Richland County, Case No. 13CA79                                                        9


       counts for all such offenses, and the defendant may be convicted of all of

       them.



       {¶21} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, syllabus, the

Supreme Court of Ohio held: "When determining whether two offenses are allied

offenses of similar import subject to merger under R.C. 2941.25, the conduct of the

accused must be considered. (State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d

699, overruled.)"

       {¶22} In State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, paragraph two

of the syllabus, the Supreme Court of Ohio held: "Trafficking in a controlled substance

under R.C. 2925.03(A)(2) and possession of that same controlled substance under R.C.

2925.11(A) are allied offenses of similar import under R.C. 2941.25(A), because

commission of the first offense necessarily results in commission of the second."

       {¶23} In its brief at 17, the state argued the testimony established that appellant

purchased the pills to use and to sell to support his drug habit. Sergeant Mack testified

appellant stated he still had a drug problem and was unable to get into rehab so he

purchased the pills to sell to support his drug habit. T. at 310-311.

       {¶24} We find insufficient evidence to establish appellant's conduct resulted in

two separate acts or committed with a separate animus.

       {¶25} Assignment of Error II is granted.
Richland County, Case No. 13CA79                                                    10


      {¶26} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed in part and reversed in part. The matter is remanded for resentencing.

By Farmer, J.

Baldwin, J. concur and

Hoffman, P.J., dissents.




SGF/sg 520
Richland County, Case No. 13CA79                                                      11

Hoffman, P.J., dissenting

      {¶27} I respectfully dissent from the majority opinion.

      {¶28} I find a defendant does not commit a crime by merely declaring he or she

intends to do so.     Appellant had 24 hours to report the accident.        Despite his

pronouncement he had no intent to do so prior to the expiration of the 24 hour reporting

period, Appellant was free to change his mind at any time before then. Until the time

expired, there was no probable cause to arrest Appellant and the failure to file a motion

to suppress constituted ineffective assistance of counsel.1




1
 I agree a violation R.C. 2935.03 does not invoke application of the exclusionary rule.
However, the lack of probable cause to arrest results in an illegal search under the
Fourth Amendment resulting in application of the exclusionary rule.
